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By Mr. BOREN (for himself and Mr. Cohen):
S. 3251. A bill to amend the National Security Act of 1947 to improve counterintelligence measures through enhanced security for classified information, and for other purposes; to the Select Committee on Intelligence.
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We had hoped that the Select Committee on Intelligence would have been able to report this bill during this session of Congress, however, the press of business at the end of this session has precluded us from doing so.
We felt it was important, nonetheless, to provide for the public record where the committee has thus far progressed in terms of its consideration of this bill. The committee held two public hearings on this bill during this session, as well as consulted with a number of professionals in this area. We received a number of suggestions for improvement, which are reflected in the revised bill we are introducing today. It will provide the basis for further discussions during the congressional adjournment with committees whose jurisdiction overlaps our own on some of these issues, as well as provide the starting point for consideration of this measure next session.
As I stated at the time the original version of this bill was introduced, it is our belief that enactment of this legislation would significantly improve the counterintelligence posture of the United States. It incorporates the recommendations made earlier this year to the Select Committee on Intelligence by a distinguished panel of private citizens which Senator Cohen and I asked to look at this area.
In transmitting these recommendations to the committee, the chairman of the panel, Eli S. Jacobs, wrote that `[w]hile these proposals can be refined and improved, [the panel] believes that the enactment of this or similar legislation would significantly strengthen the ability of the United States to deter, detect, and prosecute persons who turn to espionage.'
These recommendations are the product of a 6-month review of the existing statutory framework governing the detection and prosecution of espionage. This effort was led, as I mentioned, by Eli S. Jacobs, a well-regarded
industrialist, who served as a counterintelligence officer in the Army and serves on a variety of boards and committees in the defense and foreign policy area, including the Defense Policy Board, the General Advisory Committee on Arms Control and Disarmament, and the Carnegie Endowment for International Peace.
Serving on the panel with Mr. Jacobs was a singular group of private citizens with impressive accomplishments both within the Government and on the outside. These included Adm. Bobby Inman, who had previously served as Director of the National Security Agency, Deputy Director of Central Intelligence, and Director of Naval Intelligence; Warren Christopher, an attorney, who formerly served as Deputy Secretary of State and Deputy Attorney General; Lloyd Cutler, an attorney, who served as counsel to President Carter; Arthur B. Culvahouse, an attorney, who served as counsel to President Reagan; Sol Linowitz, a lawyer and diplomat, who served as Ambassador to the Organization of American States and as negotiator of the Panama Canal Treaty; Richard Helms, former Director of Central Intelligence and Ambassador to Iran; Seymour Weiss, former State Department official, Ambassador to the Bahamas, and Chairman of the Defense Policy Board; and Harold Edgar, professor of law at Columbia University.
The panel was motivated largely by the large number of espionage cases we have had over the last 15 years, many of which have resulted in catastrophic damage to the Nation's security. Indeed, the Select Committee on Intelligence has documented 57 cases since 1975 where U.S. citizens have been arrested for espionage, attempted espionage, or for activities that appeared related to espionage, such as `stockpiling' classified documents at home for that `rainy day.' The vast majority of these cases have involved U.S. citizens taking the initiative, either to contact foreign governments or to hedge against future setbacks.
The panel did an indepth study of these cases, and attempted to craft legislative solutions that would deal with the problems evident from the cases. We believe they did an excellent job.
Some may say, Mr. President, that this is all well and good, but the cold war is over and we do not need to worry about espionage any longer.
We are certainly witness to extraordinary events in the Soviet Union and Eastern Europe. No one can dispute that. But are our worries over further losses through espionage at an end? Clearly, they are not. First of all, improved relations do not necessarily translate into less espionage. U.S. counterintelligence agencies report no diminution in recent months in the collection efforts of the Soviet intelligence services, for example. Indeed, with improved relations will likely come an improved operating environment for foreign intelligence services no longer viewed as so threatening by Americans and no longer so constrained by personnel ceilings and travel limitations.
Second, as I have mentioned, the largest part of the espionage problem is largely impervious to political change in the Soviet Union and Eastern Europe, and that is the phenomenon of the United States citizen with access to highly classified information who volunteers his services to a foreign intelligence service for money. No foreign government is going to turn down an opportunity to acquire information in its own national interests; the market for United States classified information is hardly about to dry up.
Third, the Soviet and East European services are not the only ones we have to worry about. There are numerous countries out there, ranging from those who publicly and routinely berate us to countries who are ostensibly our friends, who are eager to obtain information that will improve their economic competitiveness, their military prowess, or give them an advantage in terms anticipating world events. Espionage has been a problem since the early days of the Republic, and is hardly about to vanish in this era of good feelings.
The Jacobs panel told the committee that it had considered a number of proposals to deal with the problem of espionage that it rejected as being too intrusive in terms of the rights and privacy of Americans. The panel attempted to craft proposals that did not impose an undue burden on civil liberties. We believe they succeeded.
Mr. President, the bill we are introducing today makes refinements to most of the panel's recommendations, but it retains the thrust of each of them. One of the sections of the original bill, giving the NSA Director authority to assist former employees who may pose a security problem, has been dropped from the bill since this provision was enacted as part of the Intelligence Authorization Act for fiscal year 1991. In another case we have added a related proposal recommended by the Justice Department which was not considered by the Jacobs panel. This recommendation is explained in the section-by-section analysis which is included here.
Mr. President, I believe the Jacobs panel has performed a real public service in developing these proposals. The committee is certainly appreciative, as should be all of our colleagues that these very busy and talented people should take the time without remuneration to look at ways we can improve the statutory framework for dealing with this serious and intractable problem. We have made refinements in these proposals and, I think, have improved them. But it was the Jacobs panel who did the basic spadework.
Mr. President, I ask unanimous consent that the text of the bill and an accompanying section-by-section analysis be printed in the Record at the conclusion of my remarks.
There being no objection, the material was ordered to be printed in the Record, as follows:
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Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Counterintelligence Improvements Act of 1990'.
SEC. 2. AMENDMENT TO THE NATIONAL SECURITY ACT OF 1947.
The National Security Act of 1947 (50 U.S.C. 401 et. seq.) is amended by inserting at the end thereof the following new title:
Sec. 801. Eligibility for Access to Top Secret Information:
(a) The President and Vice President, Members of the Congress, Justices of the Supreme Court and judges of other courts of the United States established pursuant to Article III of the Constitution, shall, by virtue of their elected or appointed positions, be entitled to access to Top Secret information needed for the performance of their governmental functions without regard to the other provisions of this title.
(b) Among employees of the United States Government, access to Top Secret information shall be limited to employees:
(1) who have been granted access to such information pursuant to this title;
(2) who are citizens of the United States who require routine access to such information for the performance of official governmental functions; and
(3) who have been determined to be trustworthy based upon a background investigation and appropriate reinvestigations and have otherwise satisfied the requirements of section 802, below.
(c) Access to Top Secret information by persons other than those identified in subsections (a) and (b) shall be permitted only in accordance with the regulations issued by the President pursuant to section 802 below.
Sec. 802. Implementing Regulations: The President shall, within 180 days of enactment of this title, issue regulations to implement this title which shall be binding upon all departments, agencies, and offices of the Executive branch. These regulations shall, be a minimum, provide that--
(A) no employee of the United States Government shall be given access to Top Secret information owned, originated or possessed by the United States, after the effective date of this title, by any department, agency, or entity of the United States Government unless such person has been subject of an appropriate background investigation and has--
(1) provided consent to the investigative agency responsible for conducting the security investigation of such person, during the initial background investigation and for such time as access to such information is maintained, and for 5 years thereafter, permitting access to--
(a) financial records concerning the subject pursuant to section 1104 of the Right to Financial Privacy Act of 1978;
(b) consumer reports concerning the subject pursuant to section 1681b of the Consumer Credit Protection Act; and
(c) records maintained by commercial entities within the United States pertaining to any travel by the subject outside the United States;
Provided, That--
(i) no information may be requested by an authorized investigative agency pursuant to this section for any purpose other than making a security determination;
(ii) where the person concerned no longer has access to Top Secret information, no information may be requested by an authorized investigative agency pursuant to this section unless such agency has reasonable grounds to believe, based upon specific and articulable facts available to it, that such person may pose a threat to the continued security of the information to which he or she had previously had access; and
(iii) any information obtained by an authorized investigative agency pursuant to this section shall not be disseminated to any other department, agency, or entity for any purpose other than for making a security determination, or for foreign counterintelligence or law enforcement purposes.
(2) agreed, during the period of his or her access, to report to the department, agency, or entity granting such access in accordance with applicable regulations, any travel to foreign countries which has not been authorized as part of the subject's official duties;
(3) agreed to report to the Federal Bureau of Investigation, or to appropriate investigative authorities of the department, agency, or entity concerned, any unauthorized contacts with persons known to be foreign nationals or persons representing foreign nationals, where an effort to acquire classified information is made by the foreign national, or where such contacts appear intended for this purpose. For purposes of this subsection, the term `unauthorized contacts' does not include contacts made within the context of an authorized diplomatic relationship.
Failure by the employee to comply with any of the requirements of this subsection shall constitute grounds for denial or termination of access to the Top Secret information concerned.
(B) all employees granted access to Top Secret information pursuant to this subsection shall also be subject to--
(1) additional background investigations by appropriate governmental authorities during the period of access at no less frequent interval than every 5 years, except that any failure to satisfy this requirement that is not solely attributable to the subject of the investigation shall not result in a loss or denial of access; and
(2) investigation by appropriate governmental authority at any time during the period of access to ascertain whether such persons continue to meet the requirements for access.
(C) access to Top Secret information by categories of persons who do not meet the requirements of subsections (A) and (B) of this section may be permitted only where the President, or officials designated by the President for this purpose, determine that such access is essential to protect or further the national security interests of the United States.
(D) a single office within the Executive branch shall be designated to monitoring the implementation and operation of this title within the Executive branch. This office shall submit an annual report to the President and appropriate committees of the Congress, describing the operation of this title and recommending needed improvements.
A copy of the regulations implementing this title shall be provided to the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives thirty days prior to their effective date.
Sec. 803. Waivers for Individual Cases: In extraordinary circumstances, when essential to protect or further the national security interests of the United States, the President (or officials designated by the President for this purpose) may waive the provisions of this title, or the provisions of the regulations issued pursuant to section 802, above, in individual cases involving persons who are citizens of the United States or are persons admitted into the United States for permanent residence; Provided that all such waivers shall be made a matter of record and reported to the office designated pursuant to section 802(D), above, and shall be available for review by the Select Committee on Intelligence of the Senate and the Permanent Select Committee of the House of Representatives.
Sec. 804. Definitions: For purposes of this title--
(a) the term `national security' refers to the national defense and foreign relations of the United States;
(b) the phrases `information classified in the interest of national security' or `classified information' mean any information originated by or on behalf of the United States Government, the unauthorized disclosure of which would cause damage to the national security, which has been marked and is controlled pursuant to the Executive Order 12356 of April 2, 1982, or successor orders, or the Atomic Energy Act of 1954;
(c) the term `Top Secret information' means information classified in the interests of national security, the unauthorized disclosure of which would cause exceptionally grave damage to the national security;
(d) the term `employee' includes any person who recieves a salary or compensation of any kind from the United States Government, is a contractor of the United States Government, is an unpaid consultant of the United States Government, or otherwise acts for or on behalf of the United States Government, but does not include the President or Vice President of the United States, Members of the Congress of the United States, Justices of the Supreme Court or judges of other federal courts established pursuant to Article III of the Constitution; and
(e) the term `authorized investigative agency' means an agency authorized by law or regulation to conduct investigations of persons who are proposed for access to Top Secret information to ascertain whether such persons satisfy the criteria for obtaining and retaining access to such information.
Sec. 805. Effective Date.--This title shall take effect 180 days after the date of its enactment.
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SEC. 3. PROTECTION OF CRYPTOGRAPHIC INFORMATION.
The National Security Act of 1947 (50 U.S.C. 401 et seq.), as amended by section 2, is further amended by inserting at the end the following new title:
`Sec. 901. (a) Requirements for Access to Cryptographic Information: (1) Any employee of a department or agency within the Executive branch who is granted access to classified cryptographic information or routine, recurring access to any space in which classified cryptographic key is produced or processed, or is assigned responsibilities as a custodian of classified crypotgraphic key, shall, as a condition of receiving such access, or being assigned such responsibilities, and at a minimum:
(A) meet the requirements applicable to persons having access to Top Secret information, as defined in subsection 804(c) of this Act, [as added by Section 2 of this Act]; and
(B) be subject to periodic polygraph examinations conducted by appropriate governmental authorities, limited in scope to questions of a counterintelligence nature, during the period of access.
(2) Failure to submit to an examination required under paragraph (1) shall be grounds for removal from access to cryptographic information or spaces; Provided, however, that no person shall be removed from access to cryptographic information or spaces based solely upon the interpretation of the results produced by a polygraph instrument, measuring physiological responses, unless, after further investigation, the head of the department or agency concerned determines the risk to the national security in permitting such access to be so potentially grave that access must nonetheless be denied.
(b) Definitions: For purpose of this section--
(1) the term `classified cryptographic information' means any information classified by the United States Government pursuant to law or Executive order concerning the details of (A) the nature, preparation, or use of any code, cipher, or cryptographic system of the United States; or (B) the design, construction, use, maintenance, or repair of any cryptographic equipment; Provided, however, the term does not include information concerning the use of cryptographic systems or equipment required for personal or office use;
(2) the phrase `custodian of classified cryptographic key' means positions that require access to classified cryptographic key beyond that required to use or operate cryptographic equipment for personal or office use, future editions of classified cryptographic key, or classified cryptographic key used for multiple devices;
(3) the term `classified cryptographic key' means any information (usually a sequence of random binary digits), in any form, classified by the United States Government pursuant to law or Executive order that is used to set up and periodically change the operations performed by any cryptographic equipment.
(4) the term `cryptographic equipment' means any device, apparatus or appliances used, or prepared, or planned for use by the United States for the purpose of authenticating communications or disguising or concealing the contents, significance, or meanings of communications;
(5) the term `employee' includes any person who receives a salary or compensation of any kind from a department or agency of the Executive branch, or is a contractor or unpaid consultant of such department or agency;
(6) the term `head of a department or agency' refers to the highest official who exercises supervisory control over the employee concerned, and does not include any intermediate supervisory officials who may otherwise qualify as heads of agencies within departments; and
(7) the phrase `questions of a counterintelligence nature' means questions specified to the subject in advance of a polygraph examination solely to ascertain whether the subject is engaged in, or planning, espionage against the United States on behalf of a foreign government or knows persons who are so engaged.
Sec. 902. Implementing Regulations: The President shall, within 180 days of the date of enactment of this title, promulage regulations to implement the provisions of this title. The President shall provide copies of such regulations to the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives.'.
SEC. 4. AMENDMENT TO RIGHT TO FINANCIAL PRIVACY ACT.
Section 1104 of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3404) is amended by adding at the end thereof the following new subsection:
`(d)(1) Notwithstanding the provisions of subsection (a), a customer who is the subject of a personnel security investigation conducted by an authorized investigative agency of the U.S. Government as a condition of being granted or maintaining access to Top Secret information, as defined by section 804(c) of the National Security Act of 1947, [as added by section 2 of this Act], may authorize nonrevokable disclosure of all financial records maintained by financial institutions for the period of the customer's access to such information and for up to 5 years after access to such information has been terminated, by the investigative agency responsible for the conduct of such investigation, for an authorized security purpose.
(2) Such authority shall be contained in a signed and dated statement of the customer which identifies the financial records which are authorized to be disclosed. Such statement may also authorize the disclosure of financial records of accounts opened during the period covered by the consent agreement which are not identifiable at the time such consent is provided. A copy of such statement shall be provided by the investigative agency concerned to the financial institution from which disclosure is sought, together with the certification required pursuant to section 1103(b) (12 U.S.C. 3403(b)).
(3) The rights of the customer established by subsection (c), above, shall pertain to any disclosures made pursuant to this subsection.
(4) On an annual basis, the office designated by President pursuant to section 802(D) of the National Security Act of 1947, [as added by section 2 of this Act], shall fully inform the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate concerning the number of requests for financial records made pursuant to this section.
SEC. 5. NEW CRIMINAL OFFENSE FOR THE POSSESSION OF ESPIONAGE DEVICES.
(a) In General: Chapter 37 of title 18, United States Code, is amended by inserting at the end thereof the following new section:
`Sec. 799a. Possession of Espionage Devices: Whoever knowingly maintains possession of any electronic, mechanical, or other device or equipment the design and capability of which renders it primarily useful for the purpose of surreptitiously collecting or communicating information, with the intent of utilizing such device or equipment to undertake actions which would violate section 793, 794, 794a [as added by section 6 of this Act], or 798 of this title, or section 783(b) of title 50, United States Code, shall be fined not more than $10,000 or imprisoned not more than 5 years, or both.'
(b) Amendments To Table of Sections: The table of sections of chapter 37 of title 18, United States Code, is amended by adding at the end thereof the following new item:
`799a. Possession of espionage devices.'.
SEC. 6. NEW OFFENSE FOR SALE OR TRANSFER TO FOREIGN GOVERNMENTS DOCUMENTS AND OTHER MATERIALS DESIGNATED AS TOP SECRET.
(a) In General: Chapter 37 of title 18, United States Code, is amended by inserting after section 794 the following new section:
`Sec. 794a. Sale or transfer of documents or materials marked as `Top Secret'.
(a)(1) No person shall knowingly sell or otherwise transfer for any valuable consideration to any other person whom he knows or has reason to believe to be an agent or representative of a foreign government--
(A) any document, writing, code book, sketch, photograph, map, model, instrument, equipment, electronic storage media, or other material, or portion thereof, knowing that it is marked or otherwise designated in any manner, pursuant to applicable law and Executive order, as `Top Secret', or
(B) any such document, writing, code book, sketch, photograph, map, model, instrument, equipment, electronic storage media, or other material, or portion thereof, which has had such marking or designation removed without authority and the person making the sale or transfer is aware of such removal.
(2) Paragraph (1) shall not be deemed to be violated by a person who makes such transfer pursuant to applicable law or executive branch authority.
(b) In any prosecution under this section, whether or not the information or material in question has been properly marked or designated as `TOP SECRET' pursuant to applicable law or Executive order shall not be an element of the offense: Provided, however, it shall be a defense to any prosecution under this section that the information or document in question has been officially released to the public by an authorized representative of the United States prior to the sale or transfer in question.
(c) Violation of this section shall be punishable by imprisonment for a maximum of 15 years.'.
(b) Amendments to Table of Sections: The table of sections for chapter 37 of title 18, United States Code, is amended by inserting after the item relating to section 794 the following new item:
`794a. Sale or transfer of documents or materials marked as `Top Secret'.'
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SEC. 7. LESSER CRIMINAL OFFENSE FOR THE REMOVAL OF TOP SECRET DOCUMENTS BY GOVERNMENT EMPLOYEES AND CONTRACTORS
(a) In General: Chaper 93 of title 18, United States Code, is amended by inserting at the end thereof the following new section:
`Sec. 1924. Removal and Retention of `Top Secret' documents or material.
Whoever, being an officer, employee, contractor or consultant, of the United States, and having, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials classified at the level of `Top Secret' pursuant to applicable law or Executive order, knowingly removes such documents or materials at an unauthorized location shall be fined not more than $1,000, or imprisoned for not more than one year, or both.'.
(b) Amendments to Table of Sections: The table of sections for chapter 93 of title 18, United States Code, is amended by adding at the end thereof following new item:
`1924. Removal of `Top Secret' documents or material.'
SEC. 8. JURISDICTION OF U.S. COURTS TO TRY CASES INVOLVING ESPIONAGE OUTSIDE THE UNITED STATES.
(a) Chapter 211 of title 18 of the United States Code is amended by adding a new section 3239 as follow:
`S 3239. Jurisdiction for espionage and related offenses
The trial for offense involving a violation of--
(a) section 793, 794, 794a [as added by section 6 of this Act], 798, 798a [as added by section 5 of this Act,] or subsection 1030(a)(1) of this title;
(b) section 601 of the National Security Act of 1947 as added by the Intelligence Identities Protection Act of 1982 (50 U.S.C. 421); or
(c) subsections 4(b) or 4(c) of the Subversive Activities Control Act of 1950 (U.S.C. 783(b) or 783(c));
begun or committed upon the high seas or elsewhere out of the jurisdiction of any particular state or district, may be prosecuted in the District of Columbia, or in the Eastern District of Virginia, or in any other district authorized by law.'
(b) The chapter analysis for chapter 211 of title 18 of the United States Code is amended by striking out
`[3239. Repealed.]'
and inserting in lieu thereof:
`3239. Jurisdiction for espionage and related offenses.'
SEC. 9. EXPANSION OF EXISTING STATUTE REGARDING FORFEITURE OF COLLATERAL PROFITS OF CRIME TO ADDITIONAL ESPIONAGE OFFENSES.
Section 3681 of title 18, United States Code, is amended--
(1) in subsection (a), by striking out `section 794 of this title' and inserting in lieu thereof `sections 793, 794, 794a [as added by section 6 of this Act], 798, and 799a [as added by section 5 of this Act] of this title and section 783 of title 50, United States Code'; and
(2) by adding at the end thereof the following new subsection:
`(e) For purposes of this section, convictions pursuant to military courts-martial for offenses comparable to violations of sections 793, 794, 794a [as added by section 6 of this Act], 798, and 799a [as added by section 5 of this Act] of this title, or a violation of section 783 of title 50, or convictions by foreign courts for offenses which, if perpetrated within the United States Code, would constitute offenses under sections 793, 794, 794a [as added by section 6 of this Act], 798, and 799a [as added by section 5 of this Act] of this title, or a violation of section 783 of title 50 shall be considered as convictions for which actions may be ordered pursuant to this section.'.
SEC. 10. DENIAL OF ANNUITIES OR RETIRED PAY TO PERSONS CONVICTED OF ESPIONAGE IN FOREIGN COURTS INVOLVING UNITED STATES INFORMATION.
Section 8312 of title 5, United States Code, is amended by adding at the end thereof the following new subsection:
`(d) For purposes of subsections (b)(1) and (c)(1), an offense within the meaning of such subsections is established if the Attorney General certifies to the agency employing or formerly employing the person concerned--
(1) that an individual subject to this chapter has been convicted by an impartial court of appropriate jurisdiction within a foreign country in circumstances in which the conduct violates the provisions of law enumerated in subsections (b)(1) and (c)(1), or would violate such provisions, had such conduct taken place within the United States Code, and that such conviction is not being appealed or that final action has been taken on such appeal;
(2) that such conviction was obtained in accordance with procedures that provided the defendant due process rights comparable to such rights provided by the United States Constitution, and such conviction was based upon evidence which would have been admissible in the courts of the United States; and
(3) that such conviction occurred after the date of enactment of this subsection,
Provided, that any certification made pursuant to this paragraph shall be subject to review by the U.S. Court of Claims based upon the application of the individual concerned, or his or her attorney, alleging that any of the conditions set forth in subsections (1), (2), (3), herein, as certified by the Attorney General, have not been satisfied in his or her particular circumstances. Should the court determine that any of these conditions has not been satisfied in such case, the court shall order any annuity or retirement benefit to which the person concerned is entitled to be restored and shall order that any payments which may have been previously denied or withheld to be paid by the department or agency concerned.
SEC. 11. AUTHORIZING THE FBI TO OBTAIN CONSUMER REPORTS ON PERSONS BELIEVED TO BE AGENTS OF FOREIGN POWERS.
Section 608 of the Consumer Credit Protection Act (15 U.S.C. 1681f) is amended--
(1) by inserting `(a)' before `Notwithstanding'; and
(2) by inserting at the end thereof the following new subsections:
`(b) Notwithstanding the provisions of section 604, a consumer reporting agency shall, upon request, furnish a consumer report to the Federal Bureau of Investigation, if the Director of the Federal Bureau of Investigation, or the Director's designee, certifies in writing to the consumer reporting agency that such records are sought in connection with an authorized foreign counterintelligence investigation and that there are specific and articulable facts giving reason to believe that the person to whom the requested consumer report relates is an agent of a foreign power, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).
(c) Notwithstanding the provisions of section 604, a consumer reporting agency shall furnish identifying information respecting any consumer, limited to name, address, former addresses, places of employment, or former places of employment, to a representative of the Federal Bureau of Investigation when presented with a written request signed by the Director of the Director of the Federal Bureau of Investigation, or the Director's designee, stating that the information is necessary to the conduct of an authorized foreign counterintelligence investigation.
(d) No consumer reporting agency, or officer, employee, or agent of such institution shall disclose to any person that the Federal Bureau of Investigation has sought or obtained a consumer report or identifying information respecting any consumer under this section.
(e) On an annual basis the Director of the Federal Bureau of Investigation shall fully inform the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate concerning all requests made under subsections (b) and (c).'
SEC. 12. AUTHORIZING FBI ACCESS TO CERTAIN TELEPHONE SUBSCRIBER INFORMATION.
(a) Section 2709 of title 18 of the United States Code is amended by striking out subsection (b) and inserting the following subsection:
`(b) Required Certification: The Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director, may--
(1) request subscriber information, toll billing records information, or electronic communication transactional records if the Director (or the Director's
designee in a position not lower than Deputy Assistant Director) certifies in writing to the wire or electronic communication service provider to which the request is made that--
(A) the information sought is relevent to an authorized foreign counterintelligence investigation; and
(B) there are specific and articulable facts giving reason to believe that the person or entity to whom the information sought pertains is a foreign power or an agent of a foreign power as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801); and
(2) request the name, address, and length of service of a person or entity that has subscribed to an electronic communication service if the Director, or his designee in a position not lower than Deputy Assistant Director, certifies in writing to the wire or electronic communication service provider to which the request is made that--
(A) the information sought is relevant to an authorized foreign counterintelligence investigation; and
(B) if the information is not publishable, there are specific and articulable facts giving reason to believe that communication facilities registered in the name of the person or entity have been used, through the services of such provider, in communication with:
(i) a foreign power, as defined in section 101(a) of the Foreign Intelligence Surveillance Act of 1978, which engages in clandestine intelligence activities or international terrorism;
(ii) a foreign diplomatic establishment;
(iii) an agent of a foreign power, as defined in section 101(b)(1) of the Foreign Intelligence Surveillance Act of 1978, who engages or has engaged in clandestine intelligence activities or acts as a member of a foreign power as defined in section 101(a)(4) of the Foreign Intelligence Surveillance Act; or
(iv) an agent of a foreign power, as defined in section 101(b)(2) of the Foreign Intelligence Surveillance Act of 1978.
(3)(A) Except for the limited inquiry provided in subparagraph (B), the FBI may not conduct any investigation of a person or entity on the basis of nonpublishable information received pursuant to paragraph (2)(B) unless there are specific and articulable facts giving reason to believe that such person or entity is involved, or is seeking to become involved, in clandestine intelligence activities or international terrorism activities on behalf of a foreign power or an agent of a foreign power, or is in a position to provide assistance to the Federal Bureau of Investigation in countering such activities.
(B) The Federal Bureau of Investigation may conduct an inquiry, limited in duration and using the least intrusive means possible, to determine whether there is a basis for an investigation under subparagraph (A). Such inquiry shall be conducted in accordance with guidelines issued by the Attorney General and submitted to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate.'
(b) Section 2709 of title 18 of the United States Code is amended by striking out subsection (d) and inserting the following subsection:
`(d) Dissemination by Bureau. The Federal Bureau of Investigation may disseminate information and records obtained under this section only as provided in guidelines approved by the Attorney General for foreign intelligence collection and foreign counterintelligence investigations conducted by the Federal Bureau of Investigation, and with respect to dissemination to an agency of the United States, only if such information is clearly relevant to the authorized responsibilities of such agency. Information concerning a communication of a United States person obtained under this section may not be disseminated outside the Federal Bureau of Investigation except for authorized counterintelligence or law enforcement purposes.'
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SEC. 13. TO PROVIDE FOR REWARDS FOR INFORMATION CONCERNING ESPIONAGE
(a) In General--Chapter 204 of title 18, United States Code, is amended--
(1) by inserting at the end of the chapter heading `AND ESPIONAGE';
(2) in section 3071, by inserting `(a)' immediately before `With respect to';
(3) in section 3071, adding at the end thereof the following new subsection:
`(b) With respect to acts of espionage involving or directed at United States information classified in the interests of national security, the Attorney General may reward any individual who furnishes information--
(1) leading to the arrest or conviction, in any country, of any individual or individuals for commission of an act of espionage against the United States;
(2) leading to the arrest or conviction, in any country, of any individual or individuals for conspiring or attempting to commit an act of espionage against the United States; or
(3) leading to the prevention or frustration of an act of espionage against the United States.'.
(b) Amount of Rewards.--Section 3072 of title 18, United States Code, is amended by striking out `$500,000' and inserting in lieu thereof `$1,000,000'.
(c) Definitions.--Section 3077 of title 18, United States Code, is amended by inserting at the end thereof the following new paragraphs:
`(8) `act of espionage' means an activity that is a violation of section 794, 794a [as added by section 6 of this Act], 798, or 799a [as added by section 5 of this Act] of this title or section 783 of title 50, United States Code.
(9) `United States information classified in the interests of national security' means information originated, owned, or possessed by the United States Government concerning the national defense and foreign relations of the United States that has been determined pursuant to law or Executive order to require protection against unauthorized disclosure and that has been so designated.'
SEC. 14. TO PROVIDE A COURT ORDER PROCESS FOR PHYSICAL SEARCHES UNDERTAKEN FOR FOREIGN INTELLIGENCE PURPOSES
The Foreign Intelligence Surveillance Act of 1978 is amended by inserting at the end thereof the following new title:
Sec. 401(a). Applications for a court order under this title are authorized if the President has, in writing, empowered the Attorney General to approve applications to the Foreign Intelligence Surveillance Court, and a judge of that court to whom application is made may, notwithstanding any other law, grant an order, in conformity with section 403, approving a physical search in the United States, for the purpose of collecting foreign intelligence information of--
(1) the property, information or material of a foreign power as defined in section 101(a)(1), (2), and (3) of this Act, or
(2) the premises, property, information or material of an agent of a foreign power or a foreign power as defined in section 101(a)(4), (5), and (6) of this Act.
(b) The Foreign Intelligence Surveillance Court shall have jurisdiction to hear applications for an grant orders approving a physical search for the purpose of obtaining foreign intelligence information anywhere within the United States under the procedures set forth in this title, except that no judge shall hear the same application which has been denied previously by another judge. If any judge denies an application for an order authorizing a physical search under this title, such judge shall provide immediately for the record a written statement of each reason for his decision and, on motion of the United States, the record shall be transmitted, under seal, to the Court of Review.
(c) The Court of Review shall have jurisdiction to review the denial of any application made under this title. If such court determines that the application was properly denied, the Court shall immediately provide for the record a written statement of each reason for its decision and, on petition of the United States for a writ of certiorari, the record shall be transmitted under seal to the Supreme Court, which shall have jurisdiction to review such decision.
(d) Judicial proceedings under this title shall be concluded as expeditiously as possible. The record of proceedings under this title, including applications made and orders granted, shall be maintained under security measures established by the Chief Justice of the United States in consultation with the Attorney General and the Director of Central Intelligence.
Sec. 402 (a). Each application for an order approving a physical serarch under this title shall be made by a Federal officer in writing upon oath or affirmation to a judge of the Foreign Intelligence Surveillance Court. Each application shall require the approval of the Attorney General based upon the Attorney General's finding that it satisfied the criteria and requirements for such application as set forth in this title. It shall include--
(1) the identity, if known, or a description of the target of the search;
(2) the authority conferred on the Attorney General by the President of the United States and the approval of the Attorney General to make the application;
(3) the identity of the federal officer making the application and a detailed description of the premises or property to be searched and of the information, material, or property to be seized, reproduced, or altered;
(4) a statement of the facts and circumstances relied upon by the applicant to justify the applicant's belief that--
(A) the target of the physical search is a foreign power or an agent of a foreign power;
(B) the premises or property to be searched contains foreign intelligence information;
(C) the premises or property to be searched is owned, used possessed by, or is in transit to or from a foreign power or an agent of a foreign power;
(5) a statement of the proposed minimization procedures;
(6) a statement of the manner in which the physical search is to be conducted;
(7) a statement of the facts concerning all previous applications that have been made to any judge under this title involving any of the persons, premises, or property specified in the application, and the action taken on each previous applications;
(8) a statement of the facts concerning any search described in section 406(b), below, which involves any of the persons, premises, or property specified in the application; and
(9) a statement that the purpose of the physical search is to obtain foreign intelligence information.
(b) The judge many require the applicant to furnish such other information as may be necessary to make the determinations required by section 403.
Sec. 403 (a). Upon an application made pursuant to section 402, the judge shall enter an ex parte order as requested or as modified approving the physical search if the judge finds that--
(1) the President has authorized the Attorney General to approve applications for physical searches for foreign intelligence purposes;
(2) the application has been made by a Federal officer and approved by the Attorney General;
(3) on the basis of the facts submitted by the applicant there is probable cause to believe that--
(A) the target of the physical search is a foreign power or an agent of a foreign power: Provided, That no United States person may be considered an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States;
(B) the premises or property to be searched are owned, used, possessed by, or is in transit to or from an agent of a foreign power or a foreign power; and
(C) physical search of such premises or property can reasonably be expected to yield foreign intelligence information which cannot reasonably be obtained by normal investigative means; and
(4) the proposed minimization procedures meet the definition of minimization contained in this title; and
(5) the application which has been filed contains all statements required by section 402.
(b) An order approving a physical search under this section shall--
(1) specify--
(A) the Federal officer or officers authorized to conduct the physical search and the identity, if known, or a description of the target of the physical search;
(B) the premises or property to be searched and the information, material or property to be seized, altered, or reproduced;
(C) the type of foreign intelligence information sought to be acquired; and
(D) a statement of the manner in which the physical search is to be conducted and, whenever more than one physical search is authorized under the order, the authorized scope of each search and what minimization procedures shall apply to the information acquired by each search;
(2) direct--
(A) that the minimization procedures be followed;
(B) that, upon the request of the applicant, a specified landlord, custodian, or other specified person furnish the applicant forthwith all information, facilities, or assistance necessary to accomplish the physical search in such a manner as will protect its secrecy and produce a minimum of interference with the activities of the landlord, custodian, or other person; and that such landlord, custodian or other person maintain under security procedures approved by the Attorney General and the Director of Central Intelligence any records concerning the search or the aid furnished that such person wishes to retain;
(C) that the physical search be undertaken within 30 days of the date of the order, or, if the physical search is of the property, information or material of a foreign power as defined in section 101(a)(1), (2), or (3) of this Act, that such search be undertaken within one year of the order; and
(D) that the federal officer conducting the physical search promptly report to the court the circumstances and results of the physical search.
(c) At any time after a physical search has been carried out, the judge to whom the return has been made may assess compliance with the minimization procedures by reviewing the circumstances under which information concerning United States persons was acquired, retained, or disseminated.
(d) Application made and orders granted under this title shall be retained for a period of at least ten years from the date of the application.
(e) Not more than 60 days after a physical search of the residence of a United States person authorized by this title, or such a search in the circumstances described in section 406(b), has been conducted, the Attorney General shall provide the United States person with an inventory which shall include--
(1) existence or not of a court order authorizing the physical search and the date of the order;
(2) the date of the physical search and an identification of the premises or property searched; and
(3) a list of any information, material, or property seized, altered, or reproduced.
(f) On an ex parte showing of good cause by the Attorney General to a judge of the Foreign Intelligence Surveillance Court the provision of the inventory required by subsection (e) may be postponed for a period not to exceed 90 days. At the end of such period the provisions of the inventory may, upon a similar showing, be postponed indef- initely. The denial of a request for such postponements may be reviewed as provided in section 401.
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Sec. 404. (a) Information acquired from a physical search conducted pursuant to this title concerning any United States person may be used and disclosed by Federal officers and employees without the consent of the United States person only in accordance with the minimization procedures required by this title. No information acquired from a physical search pursuant to this title may be used or disclosed by Federal officers or employees except for lawful purposes.
(b) No information acquired pursuant to this title shall be disclosed for law enforcement purposes unless such disclosure is accompanied by a statement that such information, or any information derived therefrom, may only be used in a criminal proceeding with the advance authorization of the Attorney General.
(c) Whenever the United States intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceedings in or before any court, department, officer, agency, regulatory body, or other authority of the United States, against an aggrieved person, any information obtained or derived from a physical search of the premises or property of that aggrieved person pursuant to the authority of this title, the United States shall, prior to the trial, hearing, or the other proceeding or at a reasonable time prior to an effort to so disclose or so use that information or submit it in evidence, notify the aggrieved person and the court or other authority in which the information is to be disclosed or used that the United States intends to so disclose or so use such information.
(d) Whenever any State or political subdivision thereof intends to enter into evidence or otherwise use of disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of a State or a political subdivision thereof, against an aggrieved person any information obtained or derived from a physical search of the premises or property of that aggrieved person pursuant to the authority of this title, the State or political subdivision thereof shall notify the aggrieved person, the court or other authority in which the information is to be disclosed or used, and the Attorney General that the State or political subdivision thereof intends to so disclose or so use such information.
(e) Any person against whom evidence obtained or derived from a physical search to which he is an aggrieved person is to be, or has been, introduced or otherwise used or disclosed in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the evidence obtained or derived from such search on the grounds that--
(1) the information was unlawfully acquired; or
(2) the physical search was not made in conformity with an order of authorization or approval.
Such a motion shall be made before the trial, hearing, or other proceeding unless there was no opportunity to make such a motion or the person was not aware of the grounds of the motion.
(f) Whenever a court of other authority is notified pursuant to subsection (c) or (d), or whenever a motion is made pursuant to subsection (e), or whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before any court or other authority of the United States or any State to discover or obtain applications or orders or other materials relating to a physical search authorized by this title or to discover, obtain, or suppress evidence or information obtained or derived from a physical search authorized by this title, the United States district court or, where the motion is made before another authority, the United States district court in the same district as the authority, shall, notwithstanding any other law, if the Attorney General files an affidavit under oath that disclosure or any adversary hearing would harm the national security of the United States, review in camera and ex parte the application, order, and such other materials relating to the physical search as may be necessary to determine whether the physical search of the aggrieved person was lawfully authorized and conducted. In making this determination, the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or
other materials relating to the physical search only where such disclosure is necessary to make an accurate determination of the legality of the physical search.
(g) If the United States district court pursuant to subsection (f) determines that the physical search was not lawfully authorized or conducted, it shall, in accordance with the requirements of law, suppress the evidence which was unlawfully obtained or derived from the physical search of the aggrieved person or otherwise grant the motion of the aggrieved person. If the court determines that the physical search was lawfuly authorized and conducted, it shall deny the motion of the aggrieved person except to the extent that due process requires discovery or disclosure.
(h) Orders granting motions or requests under subsection (g), decisions under this section that a physical search was not lawfully authorized or conducted, and orders of the United States district court requiring review or granting disclosure of applications, orders or other materials relating to the physical search shall be final orders and binding upon all courts of the United States and the several States except a United States court of appeals and the Supreme Court.
(i) The provisions of this section regarding the use or disclosure of information obtained or derived from a physical search shall apply to information obtained or derived from a search conducted without a court order to obtain foreign intelligence information which is not a physical search as defined in this title solely because the existence of exigent circumstances would not require a warrant for law enforcement purposes.
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Sec. 405. (a) On a semiannual basis the Attorney General shall fully inform the House Permanent Select Committee on Intelligence and the Senate Select Commiteee on Intelligence concerning all physical searches conducted pursuant to this title, and all other searches, except those reported under section 108 of this Act, conducted in the United States for foreign intelligence purposes. On an annual basis the Attorney General shall also provide to those committees a report setting forth with respect to the preceding calendar year--
(a) the total number of applications made for orders approving physical searches under this title; and
(b) the total number of such orders either granted, modified, or denied.
(b) Whenever a search is conducted without a court order to obtain foreign intelligence information which is not a physical search as defined in this title solely because the existence of exigent circumstances would not require a warrant for law enforcement purposes, a full report of such search, including a description of the exigent circumstances, shall be maintaind by the Attorney General. Each such report shall be transmitted to the Foreign Intelligence Surveillance Court promptly after the search is conducted.
Sec. 406. (a) The procedures contained in this title shall be the exclusive means by which a physical search, as defined in this title, may be conducted in the United States for foreign intelligence purposes, and an order issued under this title authorizing a physical search shall constitute a search warrant authorized by law for purposes of any other law.
(b) Searches conducted in the United States to collect foreign intelligence information, other than physical searches as defined in this title and electronic surveillance as defined in this Act, and physical searches conducted in the United States without a court order to collect foreign intelligence information may be conducted only pursuant to regulations issued by the Attorney General. Such regulations, and any changes thereto, shall be provided to the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives at least 14 days prior to the taking effect. Any regulations issued by the Attorney General regarding such searches which were in effect as of June 1, 1990, shall be deemed to be regulations required by this subsection.
Sec. 407. (a) Offense: A person is guilty of an offense if he intentionally--
`(1) under color of law for the purpose of obtaining foreign intelligence information, engages in physical search within the United States except as authorized by statute; or
`(2) discloses or uses information obtained under color of law by physical search within the United States, knowing or having reason to know that the information was obtained through physical search not authorized by statute, for the purpose of obtaining intelligence information.
`(b) Defense: It is a defense to a prosecution under subsection (a) that the defendant was a law enforcement or investigative officer engaged in the course of his official duties and the physical search was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction.
`(c) Penalty: An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both.
`(d) Jurisdiction: There is Federal jurisdiction over an offense under this section if the person committing the offense was an officer or employee of the United States at the time the offense was committed.
Sec. 408. Civil Action: An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 101 (a) or (b)(1)(A), respectively, of this Act, whose premises, property, information, or material has been subjected to a physical search within the United States or about whom information obtained by such a physical search has been disclosed or used in violation of section 407 shall have a cause of action against any person who committed such violation and shall be entitled to recover--
`(a) actual damages;
`(b) punitive damages; and
`(c) reasonable attorney's fees and other investigative and litigation costs reasonable incurred.
Sec. 409. As used in this title:
`(a) The terms `foreign power,' `agent of a foreign power,' `international terrorism,' `sabotage,' `foreign intelligence information,' `Attorney General,' `United States person,' `United States',' `person,' and `State' shall have the same meaning as in Section 101 of this Act.
`(b) `Physical search' means any physical intrusion into premises or property (including examination of the interior of property by technical means) or any seizure, reproduction or alternation of information, material or property, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, but does not include `electronic surveillance' as defined in subsection 101(f) of this Act.
`(c) `Minimization procedures,' with respect to physical search, means--
`(1) specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purposes and technique of the particular physical search, to minimize the acquisition and retention, and prohibit the dissemination, of non-publicly available information concerning unconsenting United States person consistent with the need of the United States persons consistent with the need of the Untied States to obtain, produce, and disseminate foreign intelligence information;
`(2) procedures that require that non-publicly available information, which is not foreign intelligence information, as defined insubsection 101(e)(1) of this Act, shall not be disseminated in a manner that identifies any United States person, without such person's consent, unless such person's identity is necessary to understand such foreign intelligence information or assess its importance; and
`(3) notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to retained or disseminated for law enforcement purposes.'
`(d) `Aggrieved person' means a person whose premises, property, information, or material is the target of physical search or any other person whose premises, property, information, or material was subject to physical search.
`(e) `Foreign Intelligence Surveillance Court' means the court established by section 103(a) of this Act.
`(f) `Court of Review' means the court established by section 103(b) of this Act.
Sec. 410. The provisions of this title shall become effective 90 days after the date of enactment of this title, except that any physical search approved by the Attorney General to gather foreign intelligence information shall not be deemed unlawful for failure to follow the procedures of this title, if that search is conducted witin 180 days following the date of enactment of this title pursuant to regulations issued by the Attorney General, which are in the possession of the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives prior to the date of eanctment.'
Section 1 contains the title of the Act, `The Counterintelligence Improvements Act of 1990.'
Section 2 adds a new title VIII to the National Security Act of 1947 (50 U.S.C. 401 et seq.) to govern access to particularly sensitive classified information.
Section 801 establishes the requirements for eligibility to access particularly sensitive classified information.
Subsection (a) specifies that the President and Vice President, Members of Congress, Justices of the Supreme Court and judges of other federal courts established pursuant to Article III of the Constitution are eligible, by virtue of their elected and appointed positions, for access to particularly sensitive classified information needed for the performance of their governmental functions without regard to other provisions of this title. This means that the incumbents of such positions are not required to meet the security requirements of other sections of the bill (e.g. submit to background investigations or reinvestigations) applicable to government employees.
Subsection (b) provides that with respect to government employees, access to particularly sensitive classified information shall be limited to employees who have been granted access pursuant to this title, who are citizens of the United States, who require routine access to such information in the performance of official governmental functions, and who have been determined to be trustworthy based upon a background investigation and other reinvestigations undertaken pursuant to section 802, below, and have otherwise satisfied the requirements of that section.
Subsection (c) provides that the President may by regulation permit access to particularly sensitive classified information by persons other than those listed in subsections (a) and (b). The Committee intends that such regulations cover access to particularly sensitive classified information by government employees who are not citizens of the United States or who do not require routine access to such information for the performance of official functions. It is also contemplated that there will be limited circumstances
where it will be in the best interest of the United States to share such information with persons who are not government employees (including contractors). Such persons may, indeed, include foreign nationals in rare circumstances. The Committee expects the President to make appropriate allowances for such access in the regulations required by section 802.
Section 802 requires the President to issue, within 180 days of enactment of this title, regulations binding upon all elements of the Executive branch. Such regulations are required, at a minimum, to establish certain requirements enumerated in this section.
Subsection (A) sets forth the minimum requirements to be met as a condition of access to particularly sensitive classified information, to include the requirements for initial and periodic background investigations, requirements to consent to the Government's access to certain types of personal records, and requirements to report certian types of information to the Government.
Subsection (A)(1) provides that no employee of the United States Government shall be given access to particularly sensitive classified information unless such person has been the subject of a background investigation and has provided consent to the investigative agency responsible for conducting the investigation permitting access to certain types of records during the period of access and for five years thereafter. Such records include financial records covered by the Right to Financial Privacy Act of 1978; consumer credit reports covered by the Consumer Credit Protection Act; and records maintained by commercial entities within the United States pertaining to travel by the subject outside the United States. (Access by government investigative agencies to this category of records does not appear to be restricted under existing law, however, private commercial concerns may be reluctant to provide such information without the consent of the consumer.)
The three provisos at the end of the subsection (A)(1) place general limitations on the authority of the investigating agency to request or disseminate such information.
Proviso (i) states that an authorized investigative agency may not request information pursuant to this section for any purpose other than making a security clearance determination. Thus, this subsection does not provide authority to request information concerning any person who is not being contemplated for access to particularly sensitive classified information or who has such access presently or within the last five years.
Proviso (ii) states that where the individual concerned no longer has access to particularly sensitive classified information, no information may be requested by an authorized investigative agency unless such agency has reasonable grounds to believe, based upon specific and articulable facts available to it, that such persons may pose a threat to the continued security of the information to which he or she had previously had access. This means that information could not be requested concerning any person who had left government service, or who remained in government service after access had been terminated, unless the investigative agency had reasonable grounds to believe such person may pose a security concern. The Committee believes that where persons who no longer have access to highly classified information are concerned, there should be a specific basis to justify Government inquiries into their personal records.
Proviso (iii) prohibits any authorized investigative agency which obtains information pursuant to this section from disseminating it to any other department, agency, or entity for any purpose other than making a security clearance determination, or for a law enforcement or foreign counterintelligence purpose. Inasmuch as such information may be highly personal, its dissemination is justified only by the most compelling needs.
Subsection (A)(2) also requires persons being given access to particularly sensitive classified information to agree, as a condition of such access, to report, in accordance with applicable regulations, any travel to foreign countries during the period of access which has not been authorized as part of the subject's official duties. The Committee recognizes there will be cases, due to geographical location of the U.S. employee concerned, where foreign travel for personal reasons could be a routine, perhaps even daily, occurrence. By providing that reports of such travel be made in accordance with applicable regulations is intended to provide flexibility to accommodate such situations.
Subsection (A)(3) requires that persons being given access to particularly sensitive classified information also report to the Federal Bureau of Investigation or to appropriate investigative authorities of the employing department, agency, or entity, any unauthorized contacts with persons known to be foreign nationals or persons representing foreign nationals, where an effort to acquire U.S. classified information is made or is apparent. For this latter purpose, unauthorized contacts do not include contacts made within the context of an authorized diplomatic relationship. In other words, where the employee is authorized to cultivate a diplomatic relationship, and in the course of such
relationship, a foreign diplomat poses a question within the scope of such relationship, the answer to which would require classified information to be revealed, such an inquiry would not be required to be reported to investigative agencies. If, on the other hand, the foreign diplomat attempted to solicit classified information outside the scope of an authorized relationship, or attempted to recruit the U.S. diplomat to collect information in the future, such approach would be reportable under this section.
The final paragraph of subsection (A) provides that a failure by the subject to grant consent as required by this subsection, or make the reports required by this subsection, constitute ground for denial or termination of access to particularly sensitive classified information. The Committee does not intend that such failure will automatically result in such denial or termination, but rather that the department, agency, or entity concerned will evaluate all relevant information related to such failure and determine whether such action is appropriate.
Subsection (B) deals with requirements for reinvestigations of persons granted access to particularly sensitive classified information. Subsection (B)(1) provides that such persons will be subject to additional background investigations no less frequently than every 5 years. Although any failure to satisfy this requirement that is not solely attributable to the subject of the investigation shall not result in a loss or denial of access. The Committee recognizes that there may be practical reasons why reinvestigations are not accomplished within the five-year time frame. Where these are not solely attributable to subject, they should not result in any unfavorable action regarding his continued access. Subsection (B)(2) provides that such persons are subject to investigation at any time to ascertain whether they continue to meet the requirements for access. Thus, should an authorized investigative agency receive information at any time which may suggest such person may no longer meet the security requirements for access, an investigation may be undertaken.
Subsection (C) requires that the regulations address the matter of access to particularly sensitive classified information by persons other than the officials lists in section 801(A) above, or government employees eligible for access to such information as provided in section 801(B). The subsection provides that the President or other officials designated by the President for this purpose, may authorize access to such information by such persons only where such access is essential to protect or further the national security interests of the United States.
Subsection (D) requires that the President designate a single office within the Executive branch to monitor the implementation and operation of this title within the Executive branch, and provide an annual report to the President and appropriate congressional committees describing the operation of this title and recommending any needed improvements.
The bill requires that a copy of the implementing regulations required by this section be provided to the two intelligence committees 30 days prior to their effective date.
Section 803 provides authority for the President, or officials designated by the President for this purpose, to waive the provisions of this title and the regulations implementing this title for individual cases involving U.S. citizens or persons admitted to the United States for permanent residence, when essential to protect or further the national security interests of the United States, provided all such waives are made a matter of record, reported to the oversight office established pursuant to section 802, and are available for review by the intelligence committees.
The Committee recognizes there will be extraordinary circumstances when the president (or other senior officials) could be justified in waiving the investigative requirements or the consent requirements for particular persons as a condition of their receiving access to particularly sensitive classified information. the Committee believes, however, that such waiver authority ought to be limited to specific individuals who are either citizens of the United States or persons who are admitted to the United States for permanent residence. Such waiver authority is not granted to permit the exemption of entire classes of persons, or the employees of a particular department or agency, or to provide access for particular purposes (e.g., diplomatic exchanges). Should the President wish to exempt classes of persons or entire departments or agencies from the requirements of this title, or provide for access by foreign nationals under limited circumstances, such exemptions should be made in the regulations issued pursuant to section 802, which are reported to the intelligence committees, rather than made subject to individual waives pursuant to section 803.
Section 804 contains the definitions of terms used in this title.
Subsection (a) defines the term `national security' as referring to the national defense and foreign relations of the United States.
Subsection (b) defines the term `information classified in the interest of national security' or `classified information' as meaning any information originated by or on behalf of the United States Government, the unauthorized disclosure of which would cause damage to the national security, and which has been marked and is controlled pursuant to Executive order 12356, dated April 2, 1992, or successor orders, or the Atomic Energy Act of 1954.
Subsection (c) define the term `particularly sensitive classified information' as information that is classified in the interests of national security at the `Top Secret' level, the unauthorized disclosure of which would cause exceptionlly grave damage to the national security, and which is protected within a special access program created pursuant to section 4.2 of Executive order 12356, dated April 2, 1982, or successor orders, to control access, distribution, and protection of information of extraordinary importance to national security.
The Committee intends, therefore, that to qualify for coverage by this title, a person must have a `Top Secret' clearance and have access, or be proposed for access, to a special access program. Persons who hold a `Secret' clearance and have access to a special access program would not qualify as having access to `particularly sensitive classified information.'
Subsection (d) defines the term `employee' for purposes of this title as including any persons who receives a salary or compensation of any kind from the United States Government, is a contractor or unpaid consultant of the United States Government, or otherwise acts for or on behalf of the United States Government, but does not include the President or Vice President, Members of Congress, Justices of the Supreme Court or judges of federal courts established pursuant to Article III of the Constitution.
Subsection (e) defines the term `authorized investigative agency' means an agency authorized by law or regulation to conduct investigations of persons who are proposed for access to particularly sensitive classified information to ascertain whether such persons satisfy the criteria for obtaining and retaining a security clearance. Such agencies would include the Federal Bureau of Investigation, the Defense Investigative Service, and other departments and agencies who are authorized to conduct such investigations.
Section 805 provides that this title shall take effect 180 days from its enactment. This period is necessary in
order to allow time for the President to issue the implementing regulations required by section 802 prior to the effective date of this title.
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Section 3 of the bill adds a new title IX to the National Security Act of 1947 (50 U.S.C. 401 et seq.) to provide special requirements for the protection of cryptographic information. Persons with access to such information necessarily have the capability of inflicting grave damage upon the national security by enabling unauthorized persons to read or understand an unlimited number of U.S. communications at all levels of classification. In view of the peculiar sensitivity of such information, the Committee believes that special security measures should be imposed on persons who have access to this information.
It is the intent of the Committee, however, that only those Executive branch employees or contractors who have extensive involvement with, or in-depth knowledge of, classified cryptographic information need to be covered by the proposed title. This would include persons who develop U.S. codes or ciphers, persons who build or install devices or equipment which contain such codes or ciphers, and persons who are employed in locations where large volumes of classified information are processed by such devices or equipment, such as communications centers. It is not intended that persons who have access to cryptographic devices or equipment designed for personal use or office use should be covered by this title.
Section 901 establishes minimum uniform security requirements for Executive branch employees who are granted access to classified cryptographic information or routine, recurring access to any space in which classified cryptographic key is produced or processed, or is assigned responsibilities as a custodian of classified cryptographic key. The President may provide latitude in the regulations implementing this title for departments and agencies to impose additional, more stringent security measures upon such persons where circumstances may warrant.
Two basic requirements are imposed upon persons covered by the title. Subsection (a)(1)(A) requires that they meet the security requirements established by section 802 of the Act, as persons with access to particularly sensitive information. Thus, persons covered by this title would also be subject to initial background investigations, reinvestigations not less than every five years, and unscheduled investigations as appropriate, to ensure they
continue to meet the standards for access to classified cryptographic information, regardless of the level of security clearance such persons may otherwise have. They would also be required to provide their consent to the authorized governmental investigative authorities having access to the categories of records set forth in section 802.
Subsection (a)(1)(B) requires that persons covered by this title also be subject to periodic polygraph examinations conducted by appropriate governmental authorities, limited in scope to questions of a counterintelligence nature, during the period of their access to classified cryptographic information. This provision does not require such polygraph examinations for all such persons, but it does make such persons, regardless of the department or agency where they may be employed, subject to such examinations on an unscheduled basis while such access is maintained. In accordance with the implementing regulations required by section 902, it is anticipated that departments and agencies with employees or contractors covered by this title would establish or acquire a sufficient capability to conduct such examinations to maintain a credible deterrent to persons with access to such information.
The Committee also reemphasizes that this section provides for minimum standards. It is not the intent of the provision to restrict the use of the polygraph at the Central Intelligence Agency and National Security Agency, where polygraph examinations are routinely required of all employees and are not limited to questions of a counterintelligence nature.
Subsection 901(a)(2) provides that any refusal to submit to a counterintelligence-scope polygraph examination shall constitute grounds to remove such person from access to classified cryptographic information. It is not intended, however, that such person be subjected to any additional personnel or adminstrative action, including any adverse action on his or her security clearance, as a result of such refusal.
Moreover, subsection 901(a)(2) goes on to provide that no person shall be removed from access to classified cryptographic information or spaces based solely upon the interpretation of the machine results of a polygraph examination, which measure physiological responses, unless the head of the department or agency concerned determines, after further investigation, that the risk to the national security under the circumstances is so potentially grave that access cannot safely be permitted.
The Committee recognizes that a polygraph examination in essence measures certain physiological responses produced by answers to questions posed to the subject. Such responses might reflect deception on the part of the subject, but they might also reflect other, wholly innocent stimuli, both mental and physical. Indeed, while expert opinion varies in terms of how often the interpretation of polygraph results can be relied upon to show lying or deception, the Committee is aware of no expert who contends that interpretation of polygraph results provides an infallible indication of lying or deception. Accordingly, the Committee believes that an interpretation of polygraph results should not be the sole basis for denial of access to classified cryptographic information or spaces. It intends that where the results of such examinations do indicate lying or deception to key counterintelligence questions, that these discrepancies be resolved, where possible, through interviews with the subject and such further investigation as may be warranted. If such further investigation does not provide an independent basis for removal from access, such access should be granted or maintained unless the head of the department or agency concerned determines, in view of all the circumstances involved and the potentially grave risk to the national security, that access should not be permitted.
Subsection 901(b) sets forth the definitions of the terms used in this section.
Subsection (b)(1) defines the term `classified cryptographic information' as any information classified pursuant to law or Executive order which concerns the details of (A) the nature, preparation, or use of any code, cipher, or cryptographic system of the United States; or (B) the design, construction, use, maintenance, or repair of any cryptographic equipment. The provisio to this definition specifically excludes information concerning the use of cryptographic systems or equipment required for personal or office use.
This term is thus intended to cover classified information which reveals or contains detailed information concerning U.S. codes and cryptographic equipment, to include information concerning the nature and development of such codes or equipment, and the design, construction, use, maintenance or repair of such equipment. (`Cryptographic equipment' is defined in subsection (b)(4) as any device, apparatus, or appliance used by the United States for authenticating communications, or disguising or concealing communications or their meaning.) The definition of `classified cryptographic information' is not intended,
however, to cover persons who use cryptographic equipment that has been developed for personal or office use, such as a secure telephone, where such person is not also exposed to detailed information concerning the design, construction, use, maintenance or repair of such equipment. The term is intended to cover individuals, however, who require access to detailed information concerning the use of encoding equipment for other than personal or office use. For example, persons employed at government communications centers which process large volumes of classified information would be persons who fall within this definition.
Subsection b(2) defines the term `custodian of classified crytographic key' as meaning positions that require access to classified cryptologic key beyond that required to use or operate cryptographic equipment for personal or office use, future editions of such key, or such key used for multiple cryptographic devices. The term `classified cryptographic key', as defined in subsection (b)(3), refers to the information, which may take several forms, needed to set up and periodically change the operations of cryptographic equipment or devices to enable them to communicate in a secure manner.
Similar to the definition of `classified cryptographic information,' it is not the intent of the Committee to cover by this definition persons who are custodians of, or otherwise have access to, `classified cryptographic key' for personal or office use. Thus, persons who have access to such key in order to operate a secure telephone located in a single office are not covered by this definition. On the other hand, it is intended that persons who have access to such key in order to operate multiple cryptographic devices or who operate cryptographic devices which are used to process large volumes of classified information originating in multiple locations, such as government communications centers, would be covered by this definition.
Subsection (b)(5) defines the term `employee' to mean any person who receives a salary or compensation of any kind from a department or agency of the Executive branch, or is a contractor or unpaid consultant of such department or agency.
Subsection (b)(6) makes clear that the term `head of a department or agency' refers to the highest official who exercises supervisory control of the employee concerned, and does not include any intermediate supervisory officials who may otherwise qualify as heads of agencies within departments. For example, the Secretary of Defense would constitute the `head of the department' for all employees of the Department of Defense, and not the secretary of a military department or the director of a Defense agency.
Subsection (b)(7) defines the phrase `questions of a counterintelligence nature' as meaning questions specified to the subject of a polygraph examination in advance limited solely to ascertain whether such person is engaged in, or planning, espionage against the United States or knows persons who are so engaged. It is not intended that this definition encompass any question relating to the life-style of the subject, such as his or her sexual orientation, prior or present use of drugs or alcohol, etc. The sole thrust of such questions must be to ascertain whether the subject is acting on behalf of a foreign government, is involved in planning such activities, or knows others who are so engaged.
Section 902 of the bill requires the President to issue regulations to implement this title within 180 days of its enactment, and to provide copies of such regulations to the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives.
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Section 4 of the bill would amend section 1104 of the Right to Financial Privacy Act of 1978 by adding a new subsection (d) to this section. The purpose of the amendment is to permit a person who is being considered for access to particularly sensitive classified information, as that term is defined in section 2 of the bill, to provide his or her consent to authorized investigative agencies of the U.S. Government obtaining access to his or her financial records, as defined by the Right to Financial Privacy Act, as a condition of receiving and maintaining access to such information.
This provision is required because subsection 1104(a) limits the period a person may provide consent to a Government authority having access to his or her financial records to ninety days.
This section is also necessary to supplement and provide legal effect to subsection 803 [as added by section 2 of the bill] which requires that all persons who are granted access to particularly sensitive classified information provide their consent for authorized investigative agencies to be able to obtain access to their financial records pursuant to the Right to Financial Privacy Act of 1978.
The new subsection (d)(1) provides that notwithstanding the provisions of subsection 1104(a) (which limits the period a person may consent to access by government authority to his or her financial records to 90 days), a `customer', as
defined in section 1101(5) of the Right to Financial Privacy Act of 1978, who is the subject of a personnel security investigation conducted by an authorized investigative agency of the U.S. Government as a condition of being granted access or maintaining access to particularly sensitive classified information, as defined by section 803(b) of the National Security Act of 1947, may authorize nonrevocable disclosure of all financial records maintained by financial institutions for the period of the customer's access to such information and for up to five years of such access to such information has been terminated, by such investigative agency, for an authorized security purpose.
Subsection (d)(2) provides that the consent given under subsection (1) must be contained in a signed and dated statement which identifies the financial records which are authorized to be disclosed. Such statement may also authorize the disclosure of financial records of accounts opened during the period covered by the consent agreement which are not identifiable at the time the account is opened. It is anticipated that such accounts would be covered by a general statement, identifying by category the types of accounts for which access is authorized, e.g. bank accounts, credit card accounts, etc. At the time of periodic reinvestigations of the subject, the investigating agency authorized to conduct the investigation concerned may request the subject to identify any accounts which had been opened since the date the consent agreement was signed as part of the investigative process.
In addition, subsection (d)(2) requires the investigating agency concerned to provide a copy of the consent agreement to any financial institution from which disclosure is sought, together with the certification required pursuant to section 1103((b) of the Right to Financial Privacy Act of 1978, that the Government authority concerned has complied with the applicable provisions of the Act. In the circumstances contemplated, such certification would encompass the following elements: (1) that the customer of the financial institution is the subject of a background investigation required by law for access to particularly sensitive classified information pursuant to this title; (2) that the Government authority concerned is the authorized investigating agency responsible for such investigation; (3) that the request is being made during the period in which the customer has authorized access pursuant to the consent agreement provided the financial institution; and (4) that, if the accounts were not specifically identified by the consent agreement, that the financial records being sought are, in fact, records covered by such consent agreement.
Subsection (d)(3) makes clear that the right of the customer, established pursuant to subsection 1104(c) of this section, pertains to any disclosures made pursuant to subsection (d). This means that the right of the customer to obtain a copy of the record required to be made by the financial institution of any disclosure to a Government authority, (unless the Government authority has obtained a court order pursuant to section 1109 of Act), is preserved in the circumstances contemplated by subsection (d).
Subsection (d)(4) requires an annual report to the two intelligence committees by the office established pursuant to section 802(D) of the National Security Act of 1947 [as added by section 2 of the bill] to monitor the implementation of these policies, which fully informs the committees concerning all requests for financial records made pursuant to this section. It is contemplated that such reports shall, at a minimum, identify the investigative agencies making such requests, provide the number of requests each such agency has made during the reporting period, and describe by appropriate category the uses made of such information.
Section 5 amends chapter 37 of title 18, United States Code, to add a new section, creating a new criminal offense for the possession of espionage devices where the intent to use such devices to violate the espionage statutes can be shown.
It is the Committee's intent to permit the Government to prosecute the mere possession of espionage devices where intent to commit espionage can be shown, without having to prove that information relating to the national defense had, in fact, been transmitted to a foreign government, and without having to prove a conspiracy to commit espionage involving a second person and an overt act in furtherance of the conspiracy by either of the two parties, as required by existing law.
Subsection (a) adds a new section 799a at the end of chapter 37 of title 18, United States Code, which provides that any person who knowingly maintains possession of any electronic, mechanical, or other device or equipment, the design and capability of which renders it primarily useful for the purpose of surreptitiously collecting or communicating information, with the intent to utilize such device or equipment to undertake actions which would violate sections 793, 794, 794a [as added by section 6, below] or 798 of title 18, or section 783(b) of title 50, United States
Code, shall be fined not more than $10,000 or imprisoned not more than 5 years, or both.
Section 6 also amends chapter 37 of title 18, United States Code, to create a new criminal offense for any person who knowingly sells or transfers for any valuable consideration to a person whom he knows or has reason to believe to be an agent or representative of a foreign government, any classified document or material that such person knows to be marked or designated as `Top Secret,' or which such person knows to have had such marking or designation removed. Subsection (b) also provides that in any prosecution under this section, whether or not the document or material has been properly marked or designated pursuant to applicable law or Executive order is not an element of the offense. This subsection specifically provides, however, that it shall be a defense to any prosecution under this section that the information or document in question had been officially released to the public by an authorized representative of the United States Government prior to the sale or transfer in question.
Section 7 amends title 93 of title 18, United States Code, relating to the responsibilities of public officers and employees, to provide that any officer or employee of the United States, or person acting for or on behalf of the United States, who becomes possessed of `Top Secret' documents or materials, who knowingly removes such documents or materials without authority and retains them at an unauthorized location, shall be fined not more than $1,000, or imprisoned for not more than one year, or both.
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Section 8 amends chapter 211 of title 18 of the United States Code by adding a new section 3239 to establish jurisdiction in certain U.S. federal courts to try cases involving violations of the espionage laws where the alleged misconduct takes place outside the United States.
Specifically, the U.S. District Court for the District of Columbia and the U.S. District Court for the Eastern District of Virginia are granted jurisdiction over any offense involving a violation of the U.S. statutes enumerated in the section which were begun or committed upon the high seas or elsewhere out of the jurisdiction of any particular state or district.
Section 9 amends section 3681 of title 18, United States Code, to provide for expansion of the forfeiture provision to certain espionage offenses that are not enumerated in the existing law. These include violations of 18 U.S.C. 793 (gathering defense information with the intent to damage the United States); 18 U.S.C. 798 (disclosure of communications intelligence); 50 U.S.C. 783(b) (communication of classified information by a government employee to a foreign government); and the new criminal offenses which are created by this Act (18 U.S.C. 799a possession of espionage devices, added by section 5, and 18 U.S.C. 794a the sale or tansfer of `Top Secret' documents added by section 6).
The amendment to section 3681 also covers crimes of espionage that may be prosecuted under the Uniform Code of Military Justice, (Chapter 47 of Title 10, United States Code) or convictions in foreign courts which, if they occurred in the United States, would constitute offenses under the provisions of the United States Code enumerated above.
Section 10 amends 5 U.S.C. 8312 to provide that an individual may be denied an annuity or retired pay by the United States, to which he or she may otherwise have been entitled, if he or she is convicted in a foreign country of offenses involving espionage against the United States for which such annuity or retired pay could have been denied had such offenses occurred within the United States.
A new subsection (d) is added to section 8312 which provides that for purposes of section 8312 an offense is established if the Attorney General certifies to the agency employing or formerly employing the person concerned that--
(1) the individual has been convicted by an impartial court of appropriate jurisdiction within a foreign country in circumstances that would violate the provisions of law enumerated in subsections (b) and (c) of section 8312, had such conduct occurred within the United States, and that such conviction was not being appealed or that final action had been taken on such appeal within the foreign country concerned;
(2) that such conviction was obtained in accordance with procedures that afforded the defendant due process rights comparable to those provided by the U.S. Constitution, and such conviction was based upon evidence that would have been admissible in U.S. courts; and
(3) that such conviction occurred after the effective date of subsection (d).
The proviso to subsection (d) also provides that any such certification made by the Attorney General is subject to review by the United States Court of Claims based upon the application of the person concerned, or his or her attorney, alleging that the conditions certified by the Attorney General have not be satisfied in this particular case. If the court determines, after appropriate review, that the conditions established by the statute have not been met, it shall order the annuity or retirement benefit restored and shall order any payments which may have been withheld or denied to be paid.
Section 11 would amend the Consumer Credit Protection Act by inserting `(a)' before the existing paragraph of section 608 (15 U.S.C. 1681f.) and by adding four new subsections.
Subsection (b) would provide that, notwithstanding the provisions of section 604 of the Act of this Title, a consumer reporting agency shall furnish a consumer report to the FBI when presented with a request for a consumer report made pursuant to this subsection by the FBI provided that the FBI Director, or the Director's designee, certifies in writing to the consumer reporting agency that such records are sought in connection with an authorized foreign counterintelligence investigation and that there are specific and articulable facts giving reason to believe the person to whom the requested consumer report relates is an agent of a foreign power as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).
It is the intent of the Committee that, if the Director delegates his function under subsections (b) and (c) to a designee, he will delegate it no further down the FBI chain of command than the level of Deputy Assistant Director. The Committee also recognizes that the Director may delegate to the head of acting head of an FBI field office the authority to make the required certification in exigent circumstances
where time is of the essence, provided that the Director is notified as soon as possible for the circumstances involved.
The Committee also accepts the FBI's assurance that it will not under any circumstances rely upon the substantive financial information from consumer reports obtained under this section without verifying such information with the institution concerned. As reflected in other provisions of the Consumer Credit Protection Act, Congress has long been concenred that credit reports may be inaccurate. The FBI has advised that to rely solely upon such information as the basis for further investigative inquiry without verifying its accuracy would constitute poor investigative practice. The Committee recognizes it could lead to unjustified intrusions upon the privacy of innocent Americans. The best evidence would be contained in the records of the financial institutions located through the use of consumer credit reports. The Committee expects that in its internal regulations implementing this provision the FBI will permit use of unverified credit bureau ratings or financial information only to locate actual financial transaction records on record with financial or commercial entities.
Subsection (c) would provide that, notwithstanding the provisions of section 604 of the Act, a consumer reporting agency shall furnish identifying information respecting any consumer, limited to name, address, former addresses, places of employment, or former places of employment, to a representative of the FBI when presented with a written request signed by the FBI Director, or the Director's designee, stating that the information is necessary to the conduct of an authorized foreign counterintelligence investigation.'
Under current law (50 U.S.C. 1681f.) the FBI may obtain such identifying information upon request, but there is no requirement that a consumer reporting agency comply with the FBI's request and no limitation on disclosure of the request to the consumer. It is the intent of the Committee that any FBI request for information under this provision must meet the standards of applicable Attorney General's guidelines for obtaining identifying information. In addition, there should be reason to believe that the person has been in communication with a foreign power or an agent of a foreign power. The Committee understands and expects that the FBI would continue to request identifying information under the provision of existing law, but in such case the consumer reporting agency would not be compelled to comply with the FBI's request and would be permitted to disclose the request to the consumer. The Committee intends that the FBI should continue to compensate consumer credit reporting companies
only for providing identifying information voluntarily as under existing law.
Subsection (d) would provide that no consumer reporting agency, or officer, employee, or agent of such institution, shall disclose to any person that the FBI has sought or obtained a consumer report or identifying information respecting any consumer under this section. Congress has enacted similar provisions to protect the security of foreign counterintelligence investigations in the Right to Financial Privacy Act and the Electronic Communications Privacy Act. The purpose is to prevent premature disclosure of a pending investigation and to enable the FBI, rather than the consumer reporting agency, to make whatever disclosures of the FBI's inquiries may be appropriate under existing Attorney General Guidelines. The language is not intended to preclude appropriate disclosure related to requests by relevant Cogressional oversight committees.
Finally, subsection (e) would require that on an annual basis the FBI Director shall fully inform the House and Senate Intelligence Committees concerning the FBI's exercise of its authority under these provisions. As part of this report, the Committee intends that the FBI should inform the House or Senate Intelligence Committee of the facts and circumstances that are the basis for obtaining information concerning any domestic or group substantially composed of United States persons. It is not intended, however, that the report identify particular individuals whose consumer credit records were obtained pursuant to this section.
Section 12 would make two amendments to section 2709 of title 18, U.S. Code. Subsection (a) would strike subsection 2709(b) and insert in lieu thereof a new subsection containing three paragraphs.
Paragraph (1) would re-enact with one modification the existing ECPA provision for FBI access to `subscriber information and toll billing records information, or electronic communications transactional records' when the Director (or the Director's designee in a position not lower than the rank of Deputy Assistant Director) certifies in writing to the wire or electronic communication service provider to which the request is made that--(A) the information sought is relevant to an authorized foreign counterintelligence investigation; and (B) there are specific and articulable facts giving reason to believe that the person or entity to whom the information sought pertains is a
foreign power or an agent of a foreign power as defined in the Foreign Intelligence Surveillance Act.
The amendment adds the requirement that the Director's designee be of at least the rank of Deputy Assistant Director, and it is also intended that the authority delegated to that level be confined to the Intelligence and Criminal Investigative Divisions. This amendment is due, in part, to the finding in the Intelligence Committee's 1989 report on the FBI investigation of CISPES that critical decisions were made at low levels at FBI Headquarters.
Paragraph (2) would add a new provision specifically designed to meet legitimate needs for access to names, addresses, and length of service of subscribers without having to satisfy the more stringent requirements for access to toll billing records information or other electronic communication transactional records. Under this provision, the FBI Director or the Director's designee would be authorized to request the name, address, and terms of service of a person or entity if the Director or the Director's designee certifies in writing to the wire or electronic communications service provider to which the request is made that the information sought is relevant to an authorized foreign counterintelligence investigation.
In addition, if the request is for information that is `not publishable' (as explained below) the Director or a designee must certify that there are specific and articulable facts giving reason to believe that communications facilities registered in the name of the person or entity have been used, through the services of such provider, in communication with a party who falls into one of four categories--(i) a foreign power, as defined in section 101(a) of the Foreign Intelligence Surveillance Act of 1978 (FISA), which engages in clandestine intelligence activities or international terrorism; (ii) a foreign diplomatic establishment; (iii) an agent of a foreign power, as defined in section 101(b)(1) of FISA, who engages or has engaged in clandestine intelligence activities or acts as a member of a foreign power as defined in section 101(a)(4) of the Foreign Intelligence Surveillance Act (i.e., a group engaged in international terrorism or activities in preparation therefor); or (iv) an agent of a foreign power as defined in section 101(b)(2) of FISA.
If the Director delegates his function under paragraph (b)(2) to a designee, the requirement is the same as with the delegation permitted under paragraph (b)(1) as amended, that is, that he will delegate it no further down the FBI chain of command than the level of Deputy Assistant Director. As in paragraph (b)(1), delegation to that level should be confined to the Intelligence and Criminal Investigative Divisions.
Paragraph (b)(2) authorizes requests for names, addresses, and length of service. Requests would normally be limited to the name, address, telephone number, and length of service of a person or entity to whom service is provided by the wire or electronic communications service provider. It is intended that requests may also include the name and address of another person or entity who pays for the service. The substitution of `name, address, and length of service' for the term `subscriber information' makes clear that the information covered by paragraph (b)(2) shall not include the kind of information which is referred to in ECPA as `toll billing records information.' The latter is described by the FBI as `that record information maintained by a communication service provider which identifies the telelphone number dialed from a particular phone or the identification of a number dialed and attributable to a particular telephone line for which a communication service provider charges a service fee.'
Moreover, the Committee specifically intends that the authority to obtain information under paragraph (b)(2) shall not require communications service providers to create records which they do not maintain in the ordinary course of business.
The amendment distinguishes between information that is publishable and information that is `not publishable.' The FBI may obtain the former if the Director or a designee at no lower rank than Deputy Assistant Director certifies that the information sought is relevant to an authorized foreign counterintelligence investigation.
The term `not publishable' in subparagraph (2)(B) refers to information that has not been published and will not be published in a directory or similar publicly available form. Information is `not publishable' if the service provider would not provide that information to members of the general public upon request. Information that is `not publishable' includes so-called `unlisted' phone numbers that are not published in a directory or provided to the general public, normally as a result of a payment by the subscriber for a service affording greater privacy protection. Because of the greater expectation of privacy for information that is `not publishable,' the amendment imposes a higher standard for FBI access under subparagraph (2)(B).
The `specific and articulable facts giving reason to believe' standard in subparagraph (2)(B) applies both to the question of whether communications facilities have been used in communication with a particular party and to the question
of whether that party fits one of the three statutory criteria. In terms of the degree of evidence required, the `specific and articulable facts giving reason to believe' standard in subparagraph (2)(B) has the same meaning as the standard in paragraph (1)(B), which reflects existing law and the legislative history of the Electronic Communications Privacy Act. The standard is less than the probable cause standard required for the most intrusive techniques such as electronic surveillance.
With respect to the standard for showing communication with a particular party, the listing of a telephone number on the toll billing records of the party would be sufficient to justify a request for the specified information associated with that number. Other facts and circumstances may also meet this standard. For example, if a notebook of a suspected foreign agent contains a list of phone numbers, the facts and circumstances may be sufficient to meet the `specific and articulable facts giving reason to believe' standard and justify a request for information associated with those numbers. There could also be circumstances in which the FBI would have the name of an individual suspected of communicating with a foreign power through communications facilities registered in the individual's name, and it would be reasonable under this provision for the FBI to obtain the telephone number and/or address of that individual.
As stated earlier, there must also be `specific and articulable facts giving reason to believe' that the known party to the communication is (i) a foreign power, as defined in the Foreign Intelligence Surveillance Act of 1978 (FISA), which engages in clandestine intelligence activities or international terrorism; (ii) a foreign diplomatic establishment; (iii) an agent of a foreign power, as defined in section 101(b)(1) of FISA, who engages or has engaged in clandestine intelligence activities or acts as a member of a foreign power, as defined in section 101(a)(4) of the Foreign Intelligence Surveillance Act, or (iv) an agent of a foreign power, as defined in section 101(b)(2) FISA. The effect of this language is to impose a higher standard than would apply if the FISA definition of `agent of a foreign power' were used in its entirety. The impact is to provide greater protection for the privacy of persons who associate with foreign nationals in the United States.
The FISA provision was designed to meet positive foreign intelligence as well as foreign counterintelligence requirements and to cover visitors from foreign countries which had a record of using particular types of visitors for intelligence assignments. Given the primary foreign
counterintelligence purpose of this amendment and the great expansion of international visits and delegations, the need to identify the contacts of foreign nationals who are not suspected of clandestine intelligence activities or involvement with international terrorism is outweighed by the interest in the privacy of telephone communications between such foreign nationals and persons in the United States who have unlisted telephone numbers.
The FBI would also have the authority to investigate certain contacts with foreign diplomatic establishments, as determined by reference to the appropriate publications and records of the Department of State which identify premises having diplomatic immunity.
A new paragraph (3) is added to restrict FBI investigations of a person or entity whose communication with a suspected foreign power or agent of a foreign power is identified on the basis of nonpublishable information obtained under paragraph (2)(B). Paragraph (3)(A) states that, except for the limited inquiry provided in subparagraph (B), the FBI may not investigate a person or entity solely on the basis of nonpublishable information obtained pursuant to paragraph (2)(B) unless the FBI determines that there are specific and articulable facts giving reason to believe that such person or entity is involved, or is seeking to become involved, in clandestine intelligence activities or international terrorism activities, or is in a position to provide assistance to the Federal Bureau of Investigation in countering such activities. This standard is intended to require more than the bare fact of the occurrence of a communication. The contents of the communication, if intercepted or otherwise known, may be used to provide the specific and articulable facts giving reason to believe the threshold standard is met.
Subparagraph (3)(B) provides that, in order to determine whether there is a basis for an investigation under subparagraph (3)(A), the FBI may conduct an inquiry that is limited in duration and that uses the least intrusive means possible. Such inquiry shall conducted in accordance with guidelines issued by the Attorney General and submitted to the Senate Select Committee on Intelligence and the House Permanent Select Committee on Intelligence. It is intended that this requirement for guidelines may be met by the Attorney General Guidelines for FBI Foreign Intelligence Collection and Foreign Counterintelligence Investigations currently in effect.
The techniques normally used in such inquiries are examination of FBI indices and files; examination of publicly available records; examination of federal, state, and local
law enforcement records; inquiries of law enforcement, intelligence, or security agencies of foreign governments, and inquiries of an use of previously established assets. Other techniques permitted in Attorney General guidelines may be used only if they are the least intrusive means possible and only if their use is confined to determining whether there is a basis for an investigation under subparagraph (3)(A).
Paragraph (3) applies only to investigations and inquiries concerning persons or entities if the fact of their communication is identified solely on the basis of nonpublishable information obtained pursuant to paragraph (2)(B). Paragraph (3) reflects the need for careful controls on the uses the FBI will make of the names and addresses obtained in this manner. It is the intent that, after identifying persons believed to have communicated with a foreign power or foreign agent, the FBI should carefully assess its investigative needs and the intrusiveness of particular techniques before making inquiries about such persons. Particularly in the case of communications with foreign diplomatic establishments, most contacts are likely to be innocuous. If a communication has been monitored pursuant to the Foreign Intelligence Surveillance Act, the FBI should evaluate the contents to determine whether they indicate that further inquiry regarding the outside party might be expected to produce useful results.
Paragraph (3) also recognizes that FBI counterintelligence investigations are not confined to persons suspected of collaborating with foreign agents. The FBI has a legitimate interest in determining whether persons who have contacts with foreign agents might be suitable to become cooperating sources in the FBI's foreign counterintelligence investigations of those agents. For example, the FBI could be justified in interviewing a person whose contacts with foreign officials may be entirely innocent, if those contacts may be of value in providing information to the FBI for its investigations of foreign intelligence officers working under official cover at a diplomatic establishment. Such FBI interviews have no negative implications for the person interviewed. To the contrary, the FBI seeks to interview people with such contacts cased on the Bureau's experience that many Americans are positively disposed toward assisting the FBI in protecting the national security.
Subsection (b) of Section 12 amends section 2709 of Title 18, U.S. Code, by striking out subsection 2709(d) and inserting a new subsection which adds an additional sentence to the existing provisions on dissemnination by the Bureau.
One result of the FBI practices discussed above is the creation of records in FBI files whose contacts with foreign agents do not involve any suspicious activity. Subsection 2709(d) of ECPA currently allows dissemination to other U.S. government agencies `only if such information is clearly relevant to the authorized responsibilities of such agency.' Personally identifiable information in FBI files on apparently innocuous contacts with foreign officials should not be disseminated to another agency under this provision without a determination by a supervisory official that the clear relevance standard has been met.
To further emphasize this point, the amendment would modify subsection 2709(d) to provide that information concerning a communication of a United States person obtained under this section may be disseminated outside the FBI only for authorized foreign counterintelligence or law enforcement purposes. `United States person' means a citizen, permanent resident alien, or domestic organization as specified in the statutory definition used in the Foreign Intelligence Surveillance Act.
With respect to security background investigations, the intent is that such information may be disseminated if it is clearly relevant to a foreign counterintelligence issue that has arisen in a specific case and that is material to a determination of eligibility for a clearance. For example, if a member of the armed services who is required to report contacts with certain foreign nationals has not reported any such contact, but an associate interviewed in his security background investigation states that such contacts have occurred, the FBI could be requested to review its files for any information relevant to and necessary for a disposition of that issue as a foreign counterintelligence matter. The fact of a particular telephone communication could be clearly relevant to that foreign counterintelligence concern.
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Section 13 amends Chapter 204 of title 18, United States Code, to provide the Attorney General with discretionary authority to pay rewards for information leading to the arrest or conviction of espionage against the United States or leading to the prevention or frustration of such acts.
Subsection (a) renumbers the existing provisions of section 3071, which provides discretionary authority for the Attorney General to pay rewards for information leading to the arrest or conviction of persons for acts of terrorism against the United States, as subsection (a) of subsection 3071, and adds a new subsection (b) to this section.
The new subsection (b) provides that, with respect to acts of espionage involving or directed at United States information classified in the interests of national security, the Attorney General may reward any individual who furnishes information in either of three categories: (1) information leading to the arrest or conviction in any country of an individual or individuals for commission of an act of espionage against the United States; (2) information leading to the arrest or conviction of individuals in similar circumstances for conspiring to commit an act of espionage against the United States; and (3) information leading to the prevention or frustration of an act of espionage against the United States.
Subsection (b) of section 13 changes the maximum amount the Attorney General can pay as a reward for information provided under section 3071 from $500,000 to $1 million.
Subsection (c) amends the list of definitions in 18 U.S.C. 3077 to add definitions for two terms used in the amendments to section 3071. The term `act of espionage' is defined as an activity that is a violation of section 794, 794a [as added by section 6 of this Act], 798, or 799a [as added by section 5 of this Act] of title 18, or section 783 of title 50, United States Code. The term `United States information classified in the interest of national security' is defined as information owned or possessed by the United States Government concerning the national defense and foreign relations of the United States that has been determined pursuant to law or Executive order to require protection against unauthorized disclosure and that has been so designated.
Sec. 14. To provide a court order process for physical searches undertaken for foreign intelligence purposes
Sec. 14 amends the Foreign Intelli