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109th Congress Rept. 109-680 HOUSE OF REPRESENTATIVES 2d Session Part 2 ====================================================================== ELECTRONIC SURVEILLANCE MODERNIZATION ACT _______ September 25, 2006.--Ordered to be printed _______ Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the following R E P O R T together with DISSENTING AND ADDITIONAL VIEWS [To accompany H.R. 5825] [Including cost estimate of the Congressional Budget Office] The Committee on the Judiciary, to whom was referred the bill (H.R. 5825) to update the Foreign Intelligence Surveillance Act of 1978, having considered the same, report favorably thereon with an amendment and recommend that the bill as amended do pass. The amendment is as follows: Strike all after the enacting clause and insert the following: SECTION 1. SHORT TITLE. This Act may be cited as the ``Electronic Surveillance Modernization Act''. SEC. 2. FINDING. Congress finds that article I, section 8, clause 18 of the Constitution, known as the ``necessary and proper clause'', grants Congress clear authority to regulate the President's inherent power to gather foreign intelligence. SEC. 3. FISA DEFINITIONS. (a) Agent of a Foreign Power.--Subsection (b)(1) of section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801) is amended-- (1) in subparagraph (B), by striking ``; or'' and inserting ``;''; and (2) by adding at the end the following: ``(D) is reasonably expected to possess, control, transmit, or receive foreign intelligence information while such person is in the United States, provided that the official making the certification required by section 104(a)(7) deems such foreign intelligence information to be significant; or''. (b) Electronic Surveillance.--Subsection (f) of such section is amended to read as follows: ``(f) `Electronic surveillance' means-- ``(1) the installation or use of an electronic, mechanical, or other surveillance device for acquiring information by intentionally directing surveillance at a particular known person who is reasonably believed to be in the United States under circumstances in which that person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes; or ``(2) the intentional acquisition of the contents of any communication under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, if both the sender and all intended recipients are reasonably believed to be located within the United States.''. (c) Contents.--Subsection (n) of such section is amended to read as follows: ``(n) `Contents', when used with respect to a communication, includes any information concerning the substance, purport, or meaning of that communication.''. SEC. 4. AUTHORIZATION FOR ELECTRONIC SURVEILLANCE AND OTHER ACQUISITIONS FOR FOREIGN INTELLIGENCE PURPOSES. (a) In General.--The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is further amended by striking section 102 and inserting the following: ``authorization for electronic surveillance for foreign intelligence purposes ``Sec. 102. (a) In General.--Notwithstanding any other law, the President, acting through the Attorney General, may authorize electronic surveillance without a court order under this title to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that-- ``(1) the electronic surveillance is directed at-- ``(A) the acquisition of the contents of communications of foreign powers, as defined in paragraph (1), (2), or (3) of section 101(a), or an agent of a foreign power, as defined in subparagraph (A) or (B) of section 101(b)(1); or ``(B) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in paragraph (1), (2), or (3) of section 101(a); and ``(2) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 101(h); if the Attorney General reports such minimization procedures and any changes thereto to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate at least 30 days prior to the effective date of such minimization procedures, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately. ``(b) Minimization Procedures.--An electronic surveillance authorized by this subsection may be conducted only in accordance with the Attorney General's certification and the minimization procedures. The Attorney General shall assess compliance with such procedures and shall report such assessments to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate under the provisions of section 108(a). ``(c) Submission of Certification.--The Attorney General shall immediately transmit under seal to the court established under section 103(a) a copy of his certification. Such certification shall be maintained under security measures established by the Chief Justice with the concurrence of the Attorney General, in consultation with the Director of National Intelligence, and shall remain sealed unless-- ``(1) an application for a court order with respect to the surveillance is made under section 104; or ``(2) the certification is necessary to determine the legality of the surveillance under section 106(f). ``authorization for acquisition of foreign intelligence information ``Sec. 102A. (a) In General.--Notwithstanding any other law, the President, acting through the Attorney General may, for periods of up to one year, authorize the acquisition of foreign intelligence information concerning a person reasonably believed to be outside the United States if the Attorney General certifies in writing under oath that-- ``(1) the acquisition does not constitute electronic surveillance; ``(2) the acquisition involves obtaining the foreign intelligence information from or with the assistance of a wire or electronic communications service provider, custodian, or other person (including any officer, employee, agent, or other specified person of such service provider, custodian, or other person) who has access to wire or electronic communications, either as they are transmitted or while they are stored, or equipment that is being or may be used to transmit or store such communications; ``(3) a significant purpose of the acquisition is to obtain foreign intelligence information; and ``(4) the proposed minimization procedures with respect to such acquisition activity meet the definition of minimization procedures under section 101(h). ``(b) Specific Place Not Required.--A certification under subsection (a) is not required to identify the specific facilities, places, premises, or property at which the acquisition of foreign intelligence information will be directed. ``(c) Submission of Certification.--The Attorney General shall immediately transmit under seal to the court established under section 103(a) a copy of a certification made under subsection (a). Such certification shall be maintained under security measures established by the Chief Justice of the United States and the Attorney General, in consultation with the Director of National Intelligence, and shall remain sealed unless the certification is necessary to determine the legality of the acquisition under section 102B. ``(d) Minimization Procedures.--An acquisition under this section may be conducted only in accordance with the certification of the Attorney General and the minimization procedures adopted by the Attorney General. The Attorney General shall assess compliance with such procedures and shall report such assessments to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate under section 108(a). ``directives relating to electronic surveillance and other acquisitions of foreign intelligence information ``Sec. 102B. (a) Directive.--With respect to an authorization of electronic surveillance under section 102 or an authorization of an acquisition under section 102A, the Attorney General may direct a person to-- ``(1) immediately provide the Government with all information, facilities, and assistance necessary to accomplish the acquisition of foreign intelligence information in such a manner as will protect the secrecy of the electronic surveillance or acquisition and produce a minimum of interference with the services that such person is providing to the target; and ``(2) maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the electronic surveillance or acquisition or the aid furnished that such person wishes to maintain. ``(b) Compensation.--The Government shall compensate, at the prevailing rate, a person for providing information, facilities, or assistance pursuant to subsection (a). ``(c) Failure to Comply.--In the case of a failure to comply with a directive issued pursuant to subsection (a), the Attorney General may petition the court established under section 103(a) to compel compliance with the directive. The court shall issue an order requiring the person or entity to comply with the directive if it finds that the directive was issued in accordance with section 102(a) or 102A(a) and is otherwise lawful. Failure to obey an order of the court may be punished by the court as contempt of court. Any process under this section may be served in any judicial district in which the person or entity may be found. ``(d) Review of Petitions.--(1) In General.--(A) Challenge.--A person receiving a directive issued pursuant to subsection (a) may challenge the legality of that directive by filing a petition with the pool established under section 103(e)(1). ``(B) Assignment of Judge.--The presiding judge designated pursuant to section 103(b) shall assign a petition filed under subparagraph (A) to one of the judges serving in the pool established by section 103(e)(1). Not later than 24 hours after the assignment of such petition, the assigned judge shall conduct an initial review of the directive. If the assigned judge determines that the petition is frivolous, the assigned judge shall deny the petition and affirm the directive or any part of the directive that is the subject of the petition. If the assigned judge determines the petition is not frivolous, the assigned judge shall, within 72 hours, consider the petition in accordance with the procedures established under section 103(e)(2) and provide a written statement for the record of the reasons for any determination under this subsection. ``(2) Standard of Review.--A judge considering a petition to modify or set aside a directive may grant such petition only if the judge finds that such directive does not meet the requirements of this section or is otherwise unlawful. If the judge does not modify or set aside the directive, the judge shall affirm such directive, and order the recipient to comply with such directive. ``(3) Directives Not Modified.--Any directive not explicitly modified or set aside under this subsection shall remain in full effect. ``(e) Appeals.--The Government or a person receiving a directive reviewed pursuant to subsection (d) may file a petition with the court of review established under section 103(b) for review of the decision issued pursuant to subsection (d) not later than 7 days after the issuance of such decision. Such court of review shall have jurisdiction to consider such petitions and shall provide for the record a written statement of the reasons for its decision. On petition by the Government or any person receiving such directive for a writ of certiorari, the record shall be transmitted under seal to the Supreme Court, which shall have jurisdiction to review such decision. ``(f) Proceedings.--Judicial proceedings under this section shall be concluded as expeditiously as possible. The record of proceedings, including petitions filed, orders granted, and statements of reasons for decision, 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 National Intelligence. ``(g) Sealed Petitions.--All petitions under this section shall be filed under seal. In any proceedings under this section, the court shall, upon request of the Government, review ex parte and in camera any Government submission, or portions of a submission, which may include classified information. ``(h) Liability.--No cause of action shall lie in any court against any person for providing any information, facilities, or assistance in accordance with a directive under this section. ``(i) Use of Information.--Information acquired pursuant to a directive by the Attorney General under this section 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 section 102(a) or 102A(a). No otherwise privileged communication obtained in accordance with, or in violation of, the provisions of this section shall lose its privileged character. No information from an electronic surveillance under section 102 or an acquisition pursuant to section 102A may be used or disclosed by Federal officers or employees except for lawful purposes. ``(j) Use in Law Enforcement.--No information acquired pursuant to this section shall be disclosed for law enforcement purposes unless such disclosure is accompanied by a statement that such information, or any information derived from such information, may only be used in a criminal proceeding with the advance authorization of the Attorney General. ``(k) Disclosure in Trial.--If the Government intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding 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 an electronic surveillance conducted under section 102 or an acquisition authorized pursuant to section 102A, the Government shall, prior to the trial, hearing, or other proceeding or at a reasonable time prior to an effort to disclose or 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 Government intends to disclose or use such information. ``(l) Disclosure in State Trials.--If a State or political subdivision of a State intends to enter into evidence or otherwise use or 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 of a State, against an aggrieved person, any information obtained or derived from an electronic surveillance authorized pursuant to section 102 or an acquisition authorized pursuant to section 102A, the State or political subdivision of such State 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 intends to disclose or use such information. ``(m) Motion to Exclude Evidence.--(1) In General.--Any person against whom evidence obtained or derived from an electronic surveillance authorized pursuant to section 102 or an acquisition authorized pursuant to section 102A is to be, or has been, 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 electronic surveillance or such acquisition on the grounds that-- ``(A) the information was unlawfully acquired; or ``(B) the electronic surveillance or acquisition was not properly made in conformity with an authorization under section 102(a) or 102A(a). ``(2) Timing.--A person moving to suppress evidence under paragraph (1) shall make the motion to suppress the evidence 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. ``(n) Review of Motions.--If a court or other authority is notified pursuant to subsection (k) or (l), a motion is made pursuant to subsection (m), or a 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-- ``(1) to discover or obtain an Attorney General directive or other materials relating to an electronic surveillance authorized pursuant to section 102 or an acquisition authorized pursuant to section 102A, or ``(2) to discover, obtain, or suppress evidence or information obtained or derived from an electronic surveillance authorized pursuant to section 102 or an acquisition authorized pursuant to section 102A, 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 an 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 such electronic surveillance or such acquisition as may be necessary to determine whether such electronic surveillance or such acquisition authorized under this section 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 directive or other materials relating to the acquisition only where such disclosure is necessary to make an accurate determination of the legality of the acquisition. ``(o) Determinations.--If, pursuant to subsection (n), a United States district court determines that the acquisition authorized under this section was not lawfully authorized or conducted, it shall, in accordance with the requirements of law, suppress the evidence which was unlawfully obtained or derived or otherwise grant the motion of the aggrieved person. If the court determines that such acquisition was lawfully authorized and conducted, it shall deny the motion of the aggrieved person except to the extent that due process requires discovery or disclosure. ``(p) Binding Orders.--Orders granting motions or requests under subsection (m), decisions under this section that an electronic surveillance or an acquisition was not lawfully authorized or conducted, and orders of the United States district court requiring review or granting disclosure of directives, orders, or other materials relating to such acquisition 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. ``(q) Coordination.--(1) In General.--Federal officers who acquire foreign intelligence information may consult with Federal law enforcement officers or law enforcement personnel of a State or political subdivision of a State, including the chief executive officer of that State or political subdivision who has the authority to appoint or direct the chief law enforcement officer of that State or political subdivision, to coordinate efforts to investigate or protect against-- ``(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power; ``(B) sabotage, international terrorism, or the development or proliferation of weapons of mass destruction by a foreign power or an agent of a foreign power; or ``(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power. ``(2) Certification Required.--Coordination authorized under paragraph (1) shall not preclude the certification required by section 102(a) or 102A(a). ``(r) Retention of Directives and Orders.--A directive made or an order granted under this section shall be retained for a period of not less than 10 years from the date on which such directive or such order is made.''. (b) Table of Contents.--The table of contents in the first section of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended by inserting after the item relating to section 102 the following: ``102A. Authorization for acquisition of foreign intelligence information. ``102B. Directives relating to electronic surveillance and other acquisitions of foreign intelligence information.''. SEC. 5. JURISDICTION OF FISA COURT. Section 103 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803) is amended by adding at the end the following new subsection: ``(g) Applications for a court order under this title are authorized if the President has, by written authorization, empowered the Attorney General to approve applications to the court having jurisdiction under this section, and a judge to whom an application is made may, notwithstanding any other law, grant an order, in conformity with section 105, approving electronic surveillance of a foreign power or an agent of a foreign power for the purpose of obtaining foreign intelligence information.''. SEC. 6. APPLICATIONS FOR COURT ORDERS. Section 104 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1804) is amended-- (1) in subsection (a)-- (A) in paragraph (6), by striking ``detailed description'' and inserting ``summary description''; (B) in paragraph (7)-- (i) in the matter preceding subparagraph (A), by striking ``or officials designated'' and all that follows through ``consent of the Senate'' and inserting ``designated by the President to authorize electronic surveillance for foreign intelligence purposes''; (ii) in subparagraph (C), by striking ``techniques;'' and inserting ``techniques; and''; (iii) by striking subparagraph (D); and (iv) by redesignating subparagraph (E) as subparagraph (D); (C) in paragraph (8), by striking ``a statement of the means'' and inserting ``a summary statement of the means''; (D) in paragraph (9)-- (i) by striking ``a statement'' and inserting ``a summary statement''; and (ii) by striking ``application;'' and inserting ``application; and''; (E) in paragraph (10), by striking ``thereafter; and'' and inserting ``thereafter.''; and (F) by striking paragraph (11). (2) by striking subsection (b); (3) by redesignating subsections (c) through (e) as subsections (b) through (d), respectively; and (4) in paragraph (1)(A) of subsection (d), as redesignated by paragraph (3), by striking ``or the Director of National Intelligence'' and inserting ``the Director of National Intelligence, or the Director of the Central Intelligence Agency''. SEC. 7. ISSUANCE OF AN ORDER. Section 105 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1805) is amended-- (1) in subsection (a)-- (A) by striking paragraph (1); and (B) by redesignating paragraphs (2) through (5) as paragraphs (1) through (4), respectively; (2) in subsection (c)(1)-- (A) in subparagraph (D), by striking ``surveillance;'' and inserting ``surveillance; and''; (B) in subparagraph (E), by striking ``approved; and'' and inserting ``approved.''; and (C) by striking subparagraph (F); (3) by striking subsection (d); (4) by redesignating subsections (e) through (i) as subsections (d) through (h), respectively; (5) in subsection (d), as redesignated by paragraph (4), by amending paragraph (2) to read as follows: ``(2) Extensions of an order issued under this title may be granted on the same basis as an original order upon an application for an extension and new findings made in the same manner as required for an original order and may be for a period not to exceed one year.''. (6) in subsection (e), as redesignated by paragraph (4), to read as follows: ``(e) Notwithstanding any other provision of this title, an official appointed by the President with the advice and consent of the Senate that is designated by the President to authorize electronic surveillance may authorize the emergency employment of electronic surveillance if-- ``(1) such official determines that an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; ``(2) such official determines that the factual basis for issuance of an order under this title to approve such electronic surveillance exists; ``(3) such official informs the Attorney General of such electronic surveillance; ``(4) the Attorney General or a designee of the Attorney General informs a judge having jurisdiction under section 103 of such electronic surveillance as soon as practicable, but in no case more than 7 days after the date on which such electronic surveillance is authorized; ``(5) an application in accordance with this title is made to such judge or another judge having jurisdiction under section 103 as soon as practicable, but not more than 7 days after such electronic surveillance is authorized; ``(6) such official requires that the minimization procedures required by this title for the issuance of a judicial order be followed. In the absence of a judicial order approving such electronic surveillance, the surveillance shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 7 days from the time of authorization by such official, whichever is earliest. In the event that the application for approval submitted pursuant to paragraph (5) is denied, or in any other case where the electronic surveillance is terminated and no order is issued approving the surveillance, no information obtained or evidence derived from such surveillance shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such surveillance shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person. A denial of the application made pursuant to paragraph (5) may be reviewed as provided in section 103.''; (7) in subsection (h), as redesignated by paragraph (4)-- (A) by striking ``a wire or'' and inserting ``an''; and (B) by striking ``physical search'' and inserting ``physical search or in response to a certification by the Attorney General or a designee of the Attorney General seeking information, facilities, or technical assistance from such person under section 102B''; and (8) by adding at the end the following new subsection: ``(i) In any case in which the Government makes an application to a judge under this title to conduct electronic surveillance involving communications and the judge grants such application, the judge shall also authorize the installation and use of pen registers and trap and trace devices to acquire dialing, routing, addressing, and signaling information related to such communications and such dialing, routing, addressing, and signaling information shall not be subject to minimization procedures.''. SEC. 8. USE OF INFORMATION. Section 106(i) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1806(i)) is amended-- (1) by striking ``radio communication'' and inserting ``communication''; and (2) by striking ``contents indicates'' and inserting ``contents contain significant foreign intelligence information or indicate''. SEC. 9. CONGRESSIONAL OVERSIGHT. (a) Electronic Surveillance Under FISA.--Section 108 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1808) is amended-- (1) in subsection (a)(1), by inserting ``each member of'' before ``the House Permanent Select Committee on Intelligence''; and (2) in subsection (a)(2)-- (A) in subparagraph (B), by striking ``and'' at the end; (B) in subparagraph (C), by striking the period and inserting ``; and''; and (C) by adding at the end the following new subparagraph: ``(D) the authority under which the electronic surveillance is conducted.''; and (3) in subsection (a), by adding at the end the following new paragraph: ``(3) Each report submitted under this subsection shall include reports on electronic surveillance conducted without a court order.''. (b) Intelligence Activities.--Section 501 of the National Security Act of 1947 (50 U.S.C. 413) is amended-- (1) in subsection (a)(1), by inserting ``each member of'' before ``the congressional intelligence committees''; and (2) in subsection (b), by inserting ``each member of'' before ``the congressional intelligence committees''. SEC. 10. INTERNATIONAL MOVEMENT OF TARGETS. (a) Electronic Surveillance.--Section 105(d) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(d)), as redesignated by section 7(4), is amended by adding at the end the following new paragraph: ``(4) An order issued under this section shall remain in force during the authorized period of surveillance notwithstanding the absence of the target from the United States, unless the Government files a motion to extinguish the order and the court grants the motion.''. (b) Physical Search.--Section 304(d) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1824(d)) is amended by adding at the end the following new paragraph: ``(4) An order issued under this section shall remain in force during the authorized period of surveillance notwithstanding the absence of the target from the United States, unless the Government files a motion to extinguish the order and the court grants the motion.''. SEC. 11. COMPLIANCE WITH COURT ORDERS AND ANTITERRORISM PROGRAMS. (a) In General.--Notwithstanding any other provision of law, and in addition to the immunities, privileges, and defenses provided by any other provision of law, no action shall lie or be maintained in any court, and no penalty, sanction, or other form of remedy or relief shall be imposed by any court or any other body, against any person for an activity arising from or relating to any alleged intelligence program involving electronic surveillance that the Attorney General or a designee of the Attorney General certifies, in a manner consistent with the protection of State secrets, is, was, or would be intended to protect the United States from a terrorist attack. This section shall apply to all actions or proceedings pending on or after the effective date of this Act. (b) Jurisdiction.--Any action or claim described in subsection (a) that is brought in a State court shall be deemed to arise under the Constitution and laws of the United States and shall be removable pursuant to section 1441 of title 28, United States Code. (c) Definitions.--In this section: (1) The term ``electronic surveillance'' has the meaning given the term in section 101(f) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(f)) on the day before the date of the enactment of this Act. (2) The term ``person'' has the meaning given the term in section 2510(6) of title 18, United States Code. SEC. 12. REPORT ON MINIMIZATION PROCEDURES. (a) Report.--Not later than two years after the date of the enactment of this Act, and annually thereafter until December 31, 2009, the Director of the National Security Agency, in consultation with the Director of National Intelligence and the Attorney General, shall submit to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate a report on the effectiveness and use of minimization procedures applied to information concerning United States persons acquired by means that were considered electronic surveillance as that term was defined by section 101(f) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(f)) on the day before the date of the enactment of this Act but no longer constitutes electronic surveillance as of the effective date of this Act. (b) Requirements.--A report submitted under subsection (a) shall include-- (1) a description of the implementation, during the course of communications intelligence activities conducted by the National Security Agency, of procedures established to minimize the acquisition, retention, and dissemination of nonpublicly available information concerning United States persons; (2) the number of significant violations, if any, of such minimization procedures during the 18 months following the effective date of this Act; and (3) summary descriptions of such violations. (c) Retention of Information.--Information concerning United States persons shall not be retained solely for the purpose of complying with the reporting requirements of this section. (d) Minimization Procedures Defined.--In this section, the term ``minimization procedures'' has the meaning given the term in section 101(h) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(h)). SEC. 13. TECHNICAL AND CONFORMING AMENDMENTS. The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is further amended-- (1) in section 101(h)(4), by striking ``approved pursuant to section 102(a),'' and inserting ``authorized pursuant to section 102 or any acquisition authorized pursuant to section 102A''; (2) in section 105(a)(4), as redesignated by section 7(1)(B)-- (A) by striking ``104(a)(7)(E)'' and inserting ``104(a)(6)(D)''; and (B) by striking ``104(d)'' and inserting ``104(c)''; (3) in section 106-- (A) in subsection (j) in the matter preceding paragraph (1), by striking ``105(e)'' and inserting ``105(d)''; and (B) in subsection (k)(2), by striking ``104(a)(7)(B)'' and inserting ``104(a)(6)(B)''; and (4) in section 108(a)(2)(C), by striking ``105(f)'' and inserting ``105(e)''. Purpose and Summary Representative Heather Wilson, Judiciary Committee Chairman Sensenbrenner, and Select Committee on Intelligence Chairman Hoekstra introduced H.R. 5825, the ``Electronic Surveillance Modernization Act,'' on July 18, 2006. This bill would strengthen oversight of the executive branch and enhance accountability, clarify the scope and applicability of FISA (Foreign Intelligence Surveillance Act) warrants; and update the 1978 Foreign Intelligence Surveillance Act to reflect modern changes in technology and communication. Background and Need for the Legislation H.R. 5825 pertains to the manner in which the Federal government collects oral, wire and electronic communications for foreign intelligence purposes. Congress enacted the first Federal wiretap statute during World War I.\1\ The authority and limits of government surveillance have been the focus of extensive judicial consideration. By the time the United States Supreme Court ruled on the issue in Olmstead v. United States,\2\ over 40 States had banned wiretapping. In the Olmstead case, the Court found that a wiretap of a Seattle bootlegger did not violate the Fourth Amendment because there was not ``an official search and seizure of his person, or such a seizure of his papers or his tangible material effects, or an actual physical invasion of his house or curtilage for the purposes of making a seizure.'' \3\ Subsequent decisions eroded the Olmstead holding, however. --------------------------------------------------------------------------- \1\ Charles Doyle, and Gina Stevens, Congressional Research Service, Library of Congress, Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping, at 2 (2001). \2\ 277 U.S. 438 (1928). \3\ Id. at 466. --------------------------------------------------------------------------- Today, United States courts tend to use a two-prong expectation of privacy analysis to determine whether the Fourth Amendment has been violated.\4\ Justice Harlan's concurrence in Silverman v. United States,\5\ highlights the analysis stating ``. . . there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as reasonable.'' --------------------------------------------------------------------------- \4\ Charles Doyle, and Gina Stevens, Congressional Research Service, Library of Congress, Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping, at 5 n.15 (2001). \5\ 389 U.S. 347, 361 (1967). --------------------------------------------------------------------------- In order to safeguard Fourth Amendment protections, Congress has created procedures to allow limited law enforcement access to private communications and communication records. Specifically, Congress enacted Title III of the Omnibus Crime Control and Safe Streets Act of 1968,\6\ that outlines what is and is not permissible with regard to wiretapping and electronic eavesdropping.\7\ Title III of the Crime Control Act, authorizes the use of electronic surveillance for crimes specified in 18 U.S.C. 2516. --------------------------------------------------------------------------- \6\ 87 Stat. 197, 18 U.S.C. 2510-2520 (1970 ed.) (Title III of the Crime Control Act). \7\ Charles Doyle, and Gina Stevens, Congressional Research Service, Library of Congress, Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping, at 6 (2001). --------------------------------------------------------------------------- While Congress did not cover national security cases in the Crime Control Act, it did include a disclaimer that the wiretap laws did not affect the President's constitutional duty to protect National Security. In 1972, the U.S. Supreme Court rejected the claim that this disclaimer applied to domestic security case.\8\ The Court specifically invited Congress to establish similar standards for domestic intelligence that were established for criminal investigations.\9\ --------------------------------------------------------------------------- \8\ United States v. United States District Court, 407 U.S. 297 (1972). \9\ ``Moreover, we do not hold that the same type of standards and procedures prescribed by Title III are necessarily applicable to this case. We recognize that domestic security surveillance may involve different policy and practical considerations from the surveillance of `ordinary crime'. The gathering of security intelligence is often long range and involves the interrelation of various sources and types of information. The exact targets of such surveillance may be more difficult to identify than in surveillance operations against many types of crime specified in Title III. Often, too, the emphasis of domestic intelligence gathering is on the prevention of unlawful activity or the enhancement of the Government's preparedness for some possible future crisis or emergency. Thus, the focus of domestic surveillance may be less precise than that directed against more conventional types of crime. Given these potential distinctions between Title III criminal surveillances and those involving the domestic security, Congress may wish to consider protective standards for the latter which differ from those already prescribed for specified crimes in Title III. Different standards may be compatible with the Fourth Amendment [407 U.S. 297, 323] if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens. For the warrant application may vary according to the governmental interest to be enforced and the nature of citizen rights deserving protection. As the Court said in Camara v. Municipal Court, 387 U.S. 523, 534-535 (1967): ``In cases in which the Fourth Amendment requires that a warrant to search be obtained, `probable cause' is the standard by which a particular decision to search is tested against the constitutional mandate of reasonableness. . . . In determining whether a particular inspection is reasonable--and thus in determining whether there is probable cause to issue a warrant for that inspection--the need for the inspection must be weighed in terms of these reasonable goals of code enforcement.'' It may be that Congress, for example, would judge that the application and affidavit showing probable cause need not follow the exact requirements of 2518 but should allege other circumstances more appropriate to domestic security cases; that the request for prior court authorization could, in sensitive cases, be made to any member of a specially designated court (e.g., the District Court for the District of Columbia or the Court of Appeals for the District of Columbia Circuit); and that the time and reporting requirements need not be so strict as those in 2518. Id. at 322. --------------------------------------------------------------------------- Congress enacted the Foreign Intelligence Surveillance Act of 1978 (FISA),\10\ to prescribe procedures for foreign intelligence collected domestically. FISA authorized the Federal government to collect intelligence within the United States on foreign powers and agents of foreign powers. It established a special court to review and authorize or deny wiretapping and other forms of electronic eavesdropping for purposes of foreign intelligence gathering in domestic surveillance cases. FISA was enacted by Congress to secure the integrity of the Fourth Amendment while protecting the national security interest of the United States by providing a mechanism for the domestic collection of foreign intelligence information. --------------------------------------------------------------------------- \10\ 92 Stat. 1783, 50 U.S.C. 1801 et seq. --------------------------------------------------------------------------- Changes in technology have caused an unintentional shift in the focus and reach of FISA. When FISA was enacted, domestic communications were ordinarily transmitted differently than international communications. Domestic communications were transmitted via ``wire'' while international communications were transmitted via ``radio.'' Over time, however, wire became the preferred method of transmitting international communications, blurring the technology-centered distinction between international and domestic communications. As General Hayden testified before the Senate on July 26, 2006, the: . . . NSA intercepts communications and it does so for only one purpose: to protect the lives, the liberties and the well being of the citizens of the United States from those who would do us harm. By the late 1990s, that job was becoming very difficult. The explosion of modern communications in terms of its volume, variety and velocity threatened to overwhelm the Agency. The September 11th attacks exposed an even more critical fault line. The laws of the United States do (and should) distinguish between the information space that is America and the rest of the planet. But modern telecommunications do not so cleanly respect that geographic distinction. We exist on a unitary, integrated, global telecommunications grid in which geography is an increasingly irrelevant factor. What does ``place'' mean when one is traversing the World Wide Web? There are no area codes on the Internet. And if modern telecommunications muted the distinctions of geography, our enemy seemed to want to end the distinction altogether. After all, he killed 3000 of our countrymen from within the homeland. In terms of both technology and the character of our enemy, ``in'' America and ``of'' America no longer were synonymous. I testified about this challenge in open session to the House Intelligence Committee in April of the year 2000. At the time I created some looks of disbeliefwhen I said that if Usama bin Ladin crossed the bridge from Niagara Falls, Ontario to Niagara Falls, New York, there were provisions of U.S. law that would kick in, offer him some protections and affect how NSA could now cover him. At the time I was just using this as a stark hypothetical. Seventeen months later this was about life and death. The legal regime under which NSA was operating--the Foreign Intelligence Surveillance Act--had been crafted to protect American liberty and American security. But the revolution in telecommunications technology has extended the actual impact of the FISA regime far beyond what Congress could ever have anticipated in 1978. And I don't think that anyone could make the claim that the FISA statute was optimized to deal with a 9/11 or to deal with a lethal enemy who likely already had combatants inside the United States. Because of the wording of the statute, the government looks to four factors in assessing whether or not a court order was required before NSA can lawfully intercept a communication: who was the target, where was the target, how did we intercept the communication, and where did we intercept the communication. The [Specter] bill before the committee today effectively re-examines the relevance of each of these factors and the criteria we want to use with each. Who is the target? The FISA regime from 1978 onward focused on specific court orders, against individual targets, individually justified and individually documented. This was well suited to stable, foreign entities on which we wanted to focus for extended period of time for foreign intelligence purposes. It is less well suited to provide the agility to detect and prevent attacks against the homeland. In short, its careful, individualized processes exacted little cost when the goal was long term and exhaustive intelligence coverage against a known and recognizable agent of a foreign power. The costs were different when the objective was to detect and prevent attacks, when we are in hot pursuit of communications entering or leaving the United States involving someone associated with al Qa'ida. * * * * * Where is the target? As I said earlier, geography is becoming less relevant. In the age of the Internet and a global communications grid that routes communications by the cheapest available bandwidth available each nanosecond, should our statutes presume that all communications that touch America should be equally protected? * * * * * How did we intercept the communication? For reasons that seemed sound at the time, current statute makes a distinction between collection ``on a wire'' and collection out of the air. When the law was passed, almost all local calls were on a wire and almost all long haul communications were in the air. In an age of cell phones and fiber optic cables, that has been reversed . . . with powerful and unintended consequences for how NSA can lawfully acquire a signal. Legislators in 1978 should not have been expected to predict the future of global telecommunications. Neither should you. The statute should be technology neutral. Where we intercept the communication? A single communication can transit the world even if the communicants are only a few miles apart. And in that transit NSA may have multiple opportunities to intercept it as it moves and changes medium. As long as a communication is otherwise lawfully targeted, we should be indifferent to where the intercept is achieved. Signals intelligence is a difficult art and science, especially in today's telecommunication universe. Intercept of a particular communication--one that would help protect the homeland, for example--is always probabilistic, not deterministic. No coverage is guaranteed. We need to be able to use all the technological tools we have. In that light, there are no communications more important to the safety of the Homeland than those affiliated with al Qa'ida with one end in the United States. And so why should our laws make it more difficult to target the al Qa'ida communications that are most important to us--those entering or leaving the United States!\11\ --------------------------------------------------------------------------- \11\ FISA for the 21st Century: Hearing Before the S. Comm. on the Judiciary, 109th Cong. (2006). --------------------------------------------------------------------------- As we learned from the 9/11 attacks, the enemy will exploit any vulnerability in our antiterrorism efforts with catastrophic consequences. Congress must ensure that the law enforcement and the intelligence communities are given the necessary tools and resources to detect and deter credible threats to our national security before they materialize. Congress has enhanced the tools law enforcement and intelligence officers need to fight and win the war against terrorism by passing the USA PATRIOT Act, the Homeland Security Act and the Intelligence Reform Act. However, the threat has not receded, nor has the need to update current law to ensure that FISA continues to serve the goals for which it was established. Congressional hearings demonstrate that FISA must be streamlined and technology-neutral. Furthermore, testimony highlighted the need for Congress to return FISA's focus to protecting Fourth Amendment rights. The General Counsel for the National Security Agency pointed out that ``the legislative history of the 1978 statute states: `[t]he history and law relating to electronic surveillance for `national security' purposes have revolved around the competing demands of the President's constitutional powers to gather intelligence deemed necessary for the security of the nation and the requirements of the Fourth Amendment.' \12\ With that balance in mind, H.R. 5825, the ``Electronic Surveillance Modernization Act,'' works to accomplish these goals. --------------------------------------------------------------------------- \12\ H. Rpt. 95-1283 at p. 15, 95th Congress, 2d Session, June 8, 1978. --------------------------------------------------------------------------- Hearings The Committee on the Judiciary Subcommittee on Crime, Terrorism, and Homeland Security held two hearings on H.R. 5825 on the 6th and 12th of September 2006. Committee Consideration On September 20, 2006, the Committee met in open session and ordered favorably reported the bill, H.R. 5825, with an amendment, by rollcall vote with 20 ayes and 16 nays, a quorum being present. Vote of the Committee In compliance with clause 3(b) of rule XIII of the Rules of the House of Representatives, the Committee notes that the following rollcall votes occurred during the Committee's consideration of H.R. 5825: ROLLCALL NO. 5--DATE: 9-20-06 SUBJECT: Nadler motion to adjourn, which was not agreed to by a rollcall vote of 14 ayes to 17 nays. ------------------------------------------------------------------------ Ayes Nays Present ------------------------------------------------------------------------ MR. HYDE.................................... MR. COBLE................................... X MR. SMITH................................... X MR. GALLEGLY................................ MR. GOODLATTE............................... MR. CHABOT.................................. X MR. LUNGREN................................. X MR. JENKINS................................. X MR. CANNON.................................. X MR. BACHUS.................................. X MR. INGLIS.................................. X MR. HOSTETTLER.............................. MR. GREEN................................... X MR. KELLER.................................. MR. ISSA.................................... MR. FLAKE................................... X MR. PENCE................................... X MR. FORBES.................................. X MR. KING.................................... X MR. FEENEY.................................. X MR. FRANKS.................................. X MR. GOHMERT................................. X MR. CONYERS................................. X MR. BERMAN.................................. X MR. BOUCHER................................. MR. NADLER.................................. X MR. SCOTT................................... X MR. WATT.................................... X MS. LOFGREN................................. X MS. JACKSON LEE............................. MS. WATERS.................................. X MR. MEEHAN.................................. X MR. DELAHUNT................................ MR. WEXLER.................................. X MR. WEINER.................................. X MR. SCHIFF.................................. X MS. SANCHEZ................................. X MR. VAN HOLLEN.............................. X MRS. WASSERMAN SCHULTZ...................... X MR. SENSENBRENNER, CHAIRMAN................. X --------------------------- TOTAL................................... 14 17 ------------------------------------------------------------------------ ROLLCALL NO. 6--DATE: 9-20-06 SUBJECT: Roll to record presence of Members to consider amendments to H.R. 5825--there were 16 Members present. ------------------------------------------------------------------------ ------------------------------------------------------------------------ MR. HYDE......................... MR. COBLE........................ X MR. SMITH........................ X MR. GALLEGLY..................... MR. GOODLATTE.................... MR. CHABOT....................... X MR. LUNGREN...................... X MR. JENKINS...................... X MR. CANNON....................... X MR. BACHUS....................... X MR. INGLIS....................... X MR. HOSTETTLER................... MR. GREEN........................ X MR. KELLER....................... MR. ISSA......................... MR. FLAKE........................ X MR. PENCE........................ X MR. FORBES....................... X MR. KING......................... X MR. FEENEY....................... X MR. FRANKS....................... X MR. GOHMERT...................... MR. CONYERS...................... MR. BERMAN....................... MR. BOUCHER...................... MR. NADLER....................... MR. SCOTT........................ MR. WATT......................... MS. LOFGREN...................... MS. JACKSON LEE.................. MS. WATERS....................... MR. MEEHAN....................... MR. DELAHUNT..................... MR. WEXLER....................... MR. WEINER....................... MR. SCHIFF....................... MS. SANCHEZ...................... MR. VAN HOLLEN................... MRS. WASSERMAN SCHULTZ........... MR. SENSENBRENNER, CHAIRMAN...... X -------------------------------------- TOTAL........................ 16 ------------------------------------------------------------------------ ROLLCALL NO. 7--DATE 9-20-06 SUBJECT: Mr. Lungren amendment to H.R. 5825, which was agreed to by a rollcall vote of 17 ayes to 2 nays. The amendment modifies section 2 to narrow the new definition in H.R. 5825 of an ``Agent of a Foreign Power'' that covers non- U.S. persons who possess or receive foreign intelligence information to covering only situations in which the relevant foreign intelligence information is deemed significant. This amendment would also amend the bill's modified definition of ``electronic surveillance.'' The amendment also amends section 3 of the bill that modified section 102(a) certification process of FISA to ensure that it remains focused on foreign power or agents of those foreign powers. Furthermore, the amendment modifies section 5 and 6 that streamline the FISA process to ensure that the court receives the information necessary. The amendment expands section 5, FISA's emergency authorization provision, to allow an emergency surveillance from 5 days prior to court approval up to 7 days. ------------------------------------------------------------------------ Ayes Nays Present ------------------------------------------------------------------------ MR. HYDE.................................... X MR. COBLE................................... X MR. SMITH................................... X MR. GALLEGLY................................ X MR. GOODLATTE............................... X MR. CHABOT.................................. X MR. LUNGREN................................. X MR. JENKINS................................. X MR. CANNON.................................. X MR. BACHUS.................................. X MR. INGLIS.................................. X MR. HOSTETTLER.............................. X MR. GREEN................................... X MR. KELLER.................................. X MR. ISSA.................................... X MR. FLAKE................................... X MR. PENCE................................... X MR. FORBES.................................. X MR. KING.................................... X MR. FEENEY.................................. X MR. FRANKS.................................. X MR. GOHMERT................................. X MR. CONYERS................................. MR. BERMAN.................................. MR. BOUCHER................................. MR. NADLER.................................. MR. SCOTT................................... MR. WATT.................................... MR. LOFGREN................................. MS. JACKSON LEE............................. MR. WATERS.................................. MR. MEEHAN.................................. MR. DELAHUNT................................ MR. WEXLER.................................. MR. WEINER.................................. MR. SCHIFF.................................. MR. SANCHEZ................................. MR. VAN HOLLEN.............................. MRS. WASSERMAN SCHULTZ...................... MR. SENSENBRENNER, CHAIRMAN................. X --------------------------- TOTAL................................... 17 2 ------------------------------------------------------------------------ ROLLCALL NO. 8--DATE: 9-20-06 SUBJECT: Mr. Schiff and Mr. Flake offered an amendment in the nature of a substitute to H.R. 5825, which was not agreed to by a rollcall vote of 18 ayes to 20 nays. This amendment would have deemed the Foreign Intelligence Surveillance Act the sole authorization for electronic surveillance to gather foreign intelligence information; prohibited future congressional action to amend this restriction; required the President to report to the Judiciary and Intelligence Committees on the Terrorist Surveillance Program; expanded the judges who the Chief Justice could designate as having jurisdiction to hear Foreign Intelligence Surveillance cases; has language to streamline FISA; expanded the period for applications for orders for emergency electronic surveillance; and changed the Wartime exception that currently allows warrantless surveillance to times when Congress declares war or provides an authorization that contains a specific authorization for electronic surveillance, among other things. ------------------------------------------------------------------------ Ayes Nays Present ------------------------------------------------------------------------ MR. HYDE.................................... X MR. COBLE................................... X MR. SMITH................................... X MR. GALLEGLY................................ X MR. GOODLATTE............................... X MR. CHABOT.................................. X MR. LUNGREN................................. X MR. JENKINS................................. X MR. CANNON.................................. X MR. BACHUS.................................. X MR. INGLIS.................................. X MR. HOSTETTLER.............................. X MR. GREEN................................... X MR. KELLER.................................. MR. ISSA.................................... X MR. FLAKE................................... X MR. PENCE................................... X MR. FORBES.................................. X MR. KING.................................... X MR. FEENEY.................................. X MR. FRANKS.................................. X MR. GOHMERT................................. X MR. CONYERS................................. X MR. BERMAN.................................. X MR. BOUCHER................................. X MR. NADLER.................................. X MR. SCOTT................................... X MR. WATT.................................... X MS. LOFGREN................................. X MS. JACKSON LEE............................. MS. WATERS.................................. X MR. MEEHAN.................................. X MR. DELAHUNT................................ X MR. WEXLER.................................. X MR. WEINER.................................. X MR. SCHIFF.................................. X MS. SANCHEZ................................. X MR. VAN HOLLEN.............................. X MRS. WASSERMAN SCHULTZ...................... MR. SENSENBRENNER, CHAIRMAN................. X --------------------------- TOTAL................................... 18 20 ------------------------------------------------------------------------ ROLLCALL NO. 13--DATE: 9-20-06 SUBJECT: Mr. Cannon offered an amendment to H.R. 5825, which was agreed to by a rollcall vote of 22 ayes to 16 nays. This amendment would limit the civil and criminal liability of telecommunications carriers for any activity arising from, or relating to, any alleged intelligence program involving electronic surveillance that the government has certified is, was, or would be intended to protect the United States from a terrorist attack. The amendment applies to all pending and future cases, and allows all such cases to be removed to Federal court. The amendment also applies the old definition of ``electronic surveillance'' contained in FISA prior to enactment of the Act. ------------------------------------------------------------------------ Ayes Nays Present ------------------------------------------------------------------------ MR. HYDE.................................... X MR. COBLE................................... X MR. SMITH................................... X MR. GALLEGLY................................ X MR. GOODLATTE............................... X MR. CHABOT.................................. X MR. LUNGREN................................. X MR. JENKINS................................. X MR. CANNON.................................. X MR. BACHUS.................................. X MR. INGLIS.................................. X MR. HOSTETTLER.............................. X MR. GREEN................................... X MR. KELLER.................................. MR. ISSA.................................... X MR. FLAKE................................... X MR. PENCE................................... X MR. FORBES.................................. X MR. KING.................................... X MR. FEENEY.................................. X MR. FRANKS.................................. X MR. GOHMERT................................. X MR. CONYERS................................. X MR. BERMAN.................................. X MR. BOUCHER................................. MR. NADLER.................................. X MR. SCOTT................................... X MR. WATT.................................... X MS. LOFGREN................................. X MS. JACKSON LEE............................. X MS. WATERS.................................. X MR. MEEHAN.................................. X MR. DELAHUNT................................ X MR. WEXLER.................................. X MR. WEINBER................................. X MR. SCHIFF.................................. X MS. SANCHEZ................................. X MR. VAN HOLLEN.............................. X MRS. WASSERMAN SCHULTZ...................... X MR. SENSENBRENNER, CHAIRMAN................. X --------------------------- TOTAL................................... 22 16 ------------------------------------------------------------------------ ROLLCALL NO. 14 SUBJECT: Mr. Nadler offered an amendment to H.R. 5825, which was not agreed to by a rollcall vote of 14 ayes to 22 nays. This amendment would have allowed any person to seek injunctive relief to stop an intelligence program involving electronic surveillance. ------------------------------------------------------------------------ Ayes Nays Present ------------------------------------------------------------------------ MR. HYDE.................................... X MR. COBLE................................... X MR. SMITH................................... X MR. GALLEGLY................................ X MR. GOODLATTE............................... X MR. CHABOT.................................. X MR. LUNGREN................................. X MR. JENKINS................................. X MR. CANNON.................................. X MR. BACHUS.................................. X MR. INGLIS.................................. X MR. HOSTETTLER.............................. X MR. GREEN................................... X MR. KELLER.................................. MR. ISSA.................................... X MR. FLAKE................................... X MR. PENCE................................... X MR. FORBES.................................. X MR. KING.................................... X MR. FEENEY.................................. X MR. FRANKS.................................. X MR. GOHMERT................................. X MR. CONYERS................................. X MR. BERMAN.................................. X MR. BOUCHER................................. MR. NADLER.................................. X MR. SCOTT................................... X MR. WATT.................................... X MS. LOFGREN................................. X MS. JACKSON LEE............................. X MS. WATERS.................................. X MR. MEEHAN.................................. MR. DELAHUNT................................ MR. WEXLER.................................. X MR. WEINER.................................. X MR. SCHIFF.................................. X MS. SANCHEZ................................. X MR. VAN HOLLEN.............................. X MRS. WASSERMAN SCHULTZ...................... X MR. SENSENBRENNER, CHAIRMAN................. X --------------------------- TOTAL................................... 14 22 ------------------------------------------------------------------------ Committee Oversight Findings In compliance with clause 3(c)(1) of rule XIII of the Rules of the House of Representatives, the Committee reports that the findings and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report. New Budget Authority and Tax Expenditures Clause 3(c)(2) of rule XIII of the Rules of the House of Representatives is inapplicable because this legislation does not provide new budgetary authority or increased tax expenditures. Congressional Budget Office Cost Estimate In compliance with clause 3(c)(3) of rule XIII of the Rules of the House of Representatives, the Committee sets forth, with respect to the bill, H.R. 5825, the following estimate and comparison prepared by the Director of the Congressional Budget Office under section 402 of the Congressional Budget Act of 1974: H.R. 5825--Electronic Surveillance Modernization Act Summary: H.R. 5825 would modify the rules and procedures the government must follow to use electronic surveillance programs in the investigation of international terrorism. The bill would amend the definition of electronic surveillance under the Foreign Intelligence Surveillance Act (FISA) to remove the current distinction between treatment of wire and radio communications, and to focus FISA protections on domestic communications. The bill also would expand the ability of the government to conduct electronic surveillance without a warrant in certain cases where the target of the surveillance is an agent of a foreign power. H.R. 5825 would authorize the President, under certain conditions, to acquire foreign intelligence information concerning a person believed to be outside of the United States. To this end, the bill would authorize the Attorney General to direct any person or organization with access to such information to provide the United States government with all assistance necessary to acquire such intelligence. The bill directs that such persons shall be compensated at the prevailing rate for such assistance. In addition, H.R. 5825 also bakes a number of changes that could reduce the volume of material required for a FISA application, including minimizing the detailed descriptions of both the nature of the foreign intelligence information sought and the intended method of collection. CBO has no basis for predicting how the volume or type of surveillance would be changed if H.R 5825 were enacted. Furthermore, information regarding surveillance techniques and their associated costs are classified. For these reasons, CBO cannot estimate the impact on the federal budget of implementing H.R. 5825. H.R. 5825 contains intergovernmental mandates, as defined in the Unfunded Mandates Reform Act (UMRA), but CBO estimates that costs to state and local governments would fall well below the annual threshold established in UMRA ($64 million in 2006, adjusted annually for inflation). The bill also contains private-sector mandates as defined in UMRA, but CBO has no basis for estimating the costs of those mandates or whether the costs would exceed the annual threshold established in UMRA ($128 million in 2006, adjusted annually for inflation). Estimated cost to the Federal Government: CBO cannot estimate the budgetary impact of implementing H.R. 5825 because we cannot predict how the volume or type of surveillance would change under this legislation. Moreover, information regarding surveillance technologies and their associated costs are classified. Any changes in federal spending under the bill would be subject to the appropriation of the necessary funds. Enacting H.R. 5825 would not affect direct spending or revenues. Estimated impact on state, local, and tribal governments: H.R. 5825 contains an intergovernmental mandate as defined in UMRA because it would exempt from liability individuals that comply with certain federal requests for information. That exemption would preempt some state and local liability laws. CBO estimates that such preemption would impose only minimal costs on those governments. The bill also contains a mandate because it would allow federal law enforcement officers to direct public institutions such as libraries to provide information. Because data about the number of public entities currently complying with similar requests and the costs of that compliance is classified, CBO cannot estimate the total costs state and local governments would incur to comply with this mandate. Based on information from a recent survey of public libraries, however, CBO estimates that the number of requests likely would be small and that the total costs to those entities would be well below the annual threshold established in UMRA ($64 million in 2006, adjusted annually for inflation). Estimated impact on the private sector: H.R. 5825 contains private-sector mandates as defined in UMRA by requiring certain entities to assist the government with electronic surveillance and providing liability protections for those entities. CBO has no basis for estimating the costs of the mandates or whether the costs would exceed the annual threshold established in UMRA for private-sector mandates ($128 million in 2006, adjusted annually for inflation). The bill would authorize the Attorney General, after obtaining the certification required under the bill, to direct a person to immediately provide the government with all information, facilities, and assistance necessary to conduct electronic surveillance and to acquire foreign intelligence. Under current law, the Attorney General may direct a ``common carrier'' to provide such assistance with electronic surveillance. This bill would expand the scope of entities that must comply with the government orders in such cases. Because CBO has no information about how often such entities would be directed to provide assistance or the costs associated with providing assistance, CBO has no basis for estimating the costs of this mandate. The bill also would authorize the government to compensate, at the prevailing rate, a person for providing such information, facilities or assistance. H.R. 5825 also would provide protection from a cause of action for any person providing information, facilities, or assistance as well as conducting physical searches in accordance with a directive from the Attorney General under the bill. Because the bill would eliminate existing rights to seek compensation for injury caused by certain acts, it would impose a private-sector mandate. The cost of the mandate would be the forgone net value of awards and settlements that could be received under current law. Because of the lack of information about both the value of awards in such cases and the number of claims that would be filed in the absence of this legislation, CBO cannot estimate the cost of this mandate. Estimate prepared by: Federal Costs: Jason Wheelock. Impact on State, Local, and Tribal Governments: Melissa Merrell. Impact on the Private Sector: Victoria Liu. Estimate approved by: Peter H. Fontaine, Deputy Assistant Director for Budget Analysis. Performance Goals and Objectives The Committee states that pursuant to clause 3(c)(4) of rule XIII of the Rules of the House of Representatives, H.R. 5825 continues the effort by Congress to provide the Administration with reasonable tools and authorities to prevent terrorist attacks on our nation, while protecting Fourth Amendment rights. The bill makes FISA technology neutral and simplifies the process for obtaining a FISA court order. Constitutional Authority Statement Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House of Representatives, the Committee finds the authority for this legislation in article 1, section 8, and the Fourth Amendment of the Constitution. Earmarks Pursuant to H. Res. 1000, adopted by the House on September 14, 2006, the Committee states that this legislation contains no earmarks. Section-by-Section Analysis and Discussion The following discussion describes the bill as reported by the Committee. Section 1. Short title This section sets forth the title of the bill as the ``Electronic Surveillance Modernization Act.'' Section 2. Finding This section contains a finding about the balance between congressional and presidential authority. Section 3. FISA definitions This section updates definitions in the Foreign Intelligence Surveillance Act in an effort to update the law and make it technology neutral. Section 3(a) amends the definition of ``Agent of a Foreign Power,'' and also the definition ``Electronic Surveillance.'' Section 50 U.S.C. 1801(b) (the Foreign Intelligence Surveillance Act of 1978) provides the definitions used to determine the target of surveillance under FISA. This section of the bill amends the definition of ``Agent of a Foreign Power'' under section 50 U.S.C. 1801(b)(1) by adding new subparagraph D. Section 1801(b)(1) covers any person other than a United States person, who-- (A) acts in the United States as an officer or employee of a foreign power, or as a member of a foreign power as defined in subsection (a)(4) of this section; (B) acts for or on behalf of a foreign power which engages in clandestine intelligence activities in the United States contrary to the interests of the United States, when the circumstances of such person's presence in the United States indicate that such person may engage in such activities in the United States, or when such person knowingly aids or abets any person in the conduct of such activities or knowingly conspires with any person to engage in such activities; or (C) engages in international terrorism or activities in preparation therefore. Section 3(a) of the bill would add new subparagraph D to the definition, which states ``Agent of a foreign power'' for any person other than a United States person, includes a person who ``is reasonably expected to possess, control, transmit or receive foreign intelligence information while in the United States, provided that the official making the certification required by section 104(a)(7) deems such foreign intelligence information to be significant;''. This new definition applies only to situations in which the relevant foreign intelligence information is deemed significant. Section 3(b) of the bill would update the term ``Electronic Surveillance'' to account for significant changes in technology since the 1978 passage of FISA. The Committee believes these changes will return FISA to its original purpose of protecting Fourth Amendment concerns by focusing on the fundamental question of whose communications are being targeted and not on the type of technology used or where communications are intercepted. The definition turns on targeting a particular known person (a) believed to be in the United States, (b) in circumstances in which that person has (i) a reasonable expectation of privacy and (ii) a warrant would be required for law enforcement purposes. The Committee strongly believes that the focus must be on the target to determine what applies and does not apply and whether fourth amendment privacy rights are implicated. A non-U.S. person, who is a terrorist in Afghanistan does not have the same privacy rights of a U.S. person and our surveillance laws should reflect this. Furthermore, the government should not be required to use different surveillance procedures based on whether a terrorist uses radio communications or wire communications to plot another attack on U.S. soil. Section 3(c) would make the definition of ``content'' for consistent with the definition used in the Federal criminal code. Section 4. Authorization for electronic surveillance and other acquisitions for foreign intelligence purposes Section 4 of the bill would amend the current section 102(a) certification process to expand the circumstances under which the government may conduct electronic surveillance without court order of foreign powers or agents of foreign powers. The drafters of FISA were trying to carve out Foreign to Foreign communications, the testimony before the Subcommittee on Crime, Terrorism, and Homeland Security explained that technology changes have made it impossible to use this provision. This section updates the section to cover agents of a foreign power and make the language technology neutral. This section would also provide a new and streamlined Attorney General certification process permitting the Attorney General to direct electronic communications service providers to provide certain information, facilities, or technical assistance for a period of up to 1 year, provided that the provision of these resources does not constitute ``electronic surveillance.'' The new process the manner in which the information is to be obtained and creates a mechanism forthe FISA Court to review and enforce the directives as well as allowing for challenges to the process. This section of the bill would modernize the law by providing the AG with the ability to ``require'' rather than ``direct'' common carriers to provide access to communications or equipment. Since the leaks of classified information to the press, some companies are concerned about assisting law enforcement in the war on terrorism without a legal document directing them to do so. Section 5. Jurisdiction of the FISA court This section provides that applications for a court order under this title are authorized if the President has, by written authorization, empowered the Attorney General to approve applications to the court having jurisdiction under this section, and a judge to whom an application is made may, notwithstanding any other law, grant an order, in conformity with section 105, approving electronic surveillance of a foreign power or an agent of a foreign power for the purpose of obtaining foreign intelligence information. Section 6. Applications for court orders This section of the bill amends section 104 of FISA (50 U.S.C. 1804). Section 104 of FISA covers the process and circumstances by which an application for a court order authorizing electronic surveillance for foreign intelligence purposes may be sought. An application for such a court order must still be made by a Federal officer in writing on oath or affirmation to a FISC judge. The application must still be approved by the Attorney General based upon his finding that the criteria and requirements set forth in 50 U.S.C. Sec. 1801 et seq. have been met. This section would reduce the volume of material required for a FISA application. Section 7. Issuance of an order This section of the bill would amend section 105 of FISA (50 U.S.C. Sec. 1805) that covers the issuance of an order based on the application in section 104 of FISA (50 U.S.C. Sec. 1804). This section modifies the issuance of order section to be consistent with the changes in the application process. Current protections and minimization procedures will remain in place to protect unintended targets. This section also amends 50 U.S.C. Sec. 1805(f) that covers emergency orders to extend the period before a judge must be notified of an emergency employment of electronic surveillance from not more than 72 hours to not more than 158 hours (7 days). Section 8. Use of information This section strike the term ``radio'' in effort to make the statute technology neutral. Additionally section 106(I) of FISA directs the destruction of unintentionally acquired information, unless the contents indicate a threat of death or serious bodily harm to any person. The bill would add to the exception contents that contain significant foreign intelligence information. Section 9. Congressional oversight Section 9 would strengthen and expand congressional oversight by amending current law that requires the Administration to inform the Intelligence Committees to instead require the Administration to inform each Member of the House Permanent Select Committee on Intelligence and Senate Select Committee on Intelligence of electronic surveillance activities conducted under this Act. Section 10. International movement of targets This section provides that an order issued under this section shall remain in force during the authorized period of surveillance notwithstanding the absence of the target from the United States, unless the Government files a motion to extinguish the order and the court grants the motion. Section 11. Compliance with court orders and antiterrorism programs This section would limit the civil and criminal liability of telecommunications carriers for any activity arising from, or relating to, any alleged intelligence program involving electronic surveillance that the government has certified is, was, or would be intended to protect the United States from a terrorist attack. The amendment applies to all pending and future cases, and allows all such cases to be removed to Federal court. The amendment also applies the old definition of ``electronic surveillance'' contained in FISA prior to enactment of the Act. Section 12. Report on minimization procedures This section would require reporting to Congress that would permit Congress to conduct efficient and appropriate oversight of the implementation of FISA modernization at NSA. H.R. 5825 would update the definition of ``electronic surveillance'' in FISA to help restore the statute to its intended focus on the surveillance of the domestic communications of persons in the United States and more generally on situations in which the constitutional interests are greatest. The bill would limit the circumstances under which it is necessary to obtain an order from the FISA Court, thereby help to focus FISA resources on the circumstances in which those resources are most important. This Amendment would provide for reporting to Congress-- allowing better congressional oversight--on the treatment of U.S. person information for several years and would help Congress see whether the changes have had the desired effects. Specifically, this section requires the NSA to provide a report to the intelligence committees on the effectiveness of the procedures applied to safeguard U.S. person information acquired by means that constituted ``electronic surveillance'' under the current FISA, but do not constitute ``electronic surveillance'' under the modernized FISA. The reports would require:A description of the ``minimization'' procedures implemented by the NSA to protect this information pertaining to U.S. Persons; The number of significant violations of those procedures; and, Summary descriptions of those violations. Section 13. Technical and conforming amendments This section makes technical corrections to the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) Changes in Existing Law Made by the Bill, as Reported In compliance with clause 3(e) of rule XIII of the Rules of the House of Representatives, changes in existing law made by the bill, as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italic, existing law in which no change is proposed is shown in roman): * * * * * * * FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978 AN ACT To authorize electronic surveillance to obtain foreign intelligence information. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the ``Foreign Intelligence Surveillance Act of 1978''. TABLE OF CONTENTS TITLE I--ELECTRONIC SURVEILLANCE WITHIN THE UNITED STATES FOR FOREIGN INTELLIGENCE PURPOSES Sec. 101. Definitions. * * * * * * * 102A. Authorization for acquisition of foreign intelligence information. 102B. Directives relating to electronic surveillance and other acquisitions of foreign intelligence information. * * * * * * * TITLE I--ELECTRONIC SURVEILLANCE WITHIN THE UNITED STATES FOR FOREIGN INTELLIGENCE PURPOSES DEFINITIONS Sec. 101. As used in this title: (a) * * * (b) ``Agent of a foreign power'' means-- (1) any person other than a United States person, who-- (A) * * * (B) acts for or on behalf of a foreign power which engages in clandestine intelligence activities in the United States contrary to the interests of the United States, when the circumstances of such person's presence in the United States indicate that such person may engage in such activities in the United States, or when such person knowingly aids or abets any person in the conduct of such activities or knowingly conspires with any person to engage in such activities; [or] * * * * * * * (D) is reasonably expected to possess, control, transmit, or receive foreign intelligence information while such person is in the United States, provided that the official making the certification required by section 104(a)(7) deems such foreign intelligence information to be significant; or * * * * * * * [(f) ``Electronic surveillance'' means-- [(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communications sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes; [(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511(2)(i) of title 18, United States Code; [(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or [(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.] (f) ``Electronic surveillance'' means-- (1) the installation or use of an electronic, mechanical, or other surveillance device for acquiring information by intentionally directing surveillance at a particular known person who is reasonably believed to be in the United States under circumstances in which that person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes; or (2) the intentional acquisition of the contents of any communication under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, if both the sender and all intended recipients are reasonably believed to be located within the United States. * * * * * * * (h) ``Minimization procedures'', with respect to electronic surveillance, means-- (1) * * * * * * * * * * (4) notwithstanding paragraphs (1), (2), and (3), with respect to any electronic surveillance [approved pursuant to section 102(a),] authorized pursuant to section 102 or any acquisition authorized pursuant to section 102A procedures that require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 105 is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person. * * * * * * * [(n) ``Contents'', when used with respect to a communication, includes any information concerning the identity of the parties to such communications or the existence, substance, purport, or meaning of that communication.] (n) ``Contents'', when used with respect to a communication, includes any information concerning the substance, purport, or meaning of that communication. * * * * * * * [AUTHORIZATION FOR ELECTRONIC SURVEILLANCE FOR FOREIGN INTELLIGENCE PURPOSES [Sec. 102. (a)(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this title to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that-- [(A) the electronic surveillance is solely directed at-- [(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 101(a) (1), (2), or (3); or [(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 101(a) (1), (2), or (3); [(B) there is no substantial likelihood that the surveillance will acquire the contents of any communications to which a United States person is a party; and [(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 101(h); and if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately. [(2) An electronic surveillance authorized by this subsection may be conducted only in accordance with the Attorney General's certification and the minimization procedures adopted by him. The Attorney General shall assess compliance with such procedures and shall report such assessments to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence under the provisions of section 108(a). [(3) The Attorney General shall immediately transmit under seal to the court established under section 103(a) a copy of his certification. Such certification shall be maintained under security measures established by the Chief Justice with the concurrence of the Attorney General, in consultation with the Director of National Intelligence, and shall remain sealed unless-- [(A) an application for a court order with respect to the surveillance is made under sections 101(h)(4) and 104; or [(B) the certification is necessary to determine the legality of the surveillance under section 106(f). [(4) With respect to electronic surveillance authorized by this subsection, the Attorney General may direct a specified communication common carrier to-- [(A) furnish all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy and produce a minimum of interference with the services that such carrier is providing its customers; and [(B) maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the surveillance or the aid furnished which such carrier wishes to retain. The Government shall compensate, at the prevailing rate, such carrier for furnishing such aid. [(b) Applications for a court order under this title are authorized if the President has, by written authorization, empowered the Attorney General to approve applications to the court having jurisdiction under section 103, and a judge to whom an application is made may, notwithstanding any other law, grant an order, in conformity with section 105, approving electronic surveillance of a foreign power or an agent of a foreign power for the purpose of obtaining foreign intelligence information, except that the court shall not have jurisdiction to grant any order approving electronic surveillance directed solely as described in paragraph (1)(A) of subsection (a) unless such surveillance may involve the acquisition of communications of any United States person.] AUTHORIZATION FOR ELECTRONIC SURVEILLANCE FOR FOREIGN INTELLIGENCE PURPOSES Sec. 102. (a) In General.--Notwithstanding any other law, the President, acting through the Attorney General, may authorize electronic surveillance without a court order under this title to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that-- (1) the electronic surveillance is directed at-- (A) the acquisition of the contents of communications of foreign powers, as defined in paragraph (1), (2), or (3) of section 101(a), or an agent of a foreign power, as defined in subparagraph (A) or (B) of section 101(b)(1); or (B) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in paragraph (1), (2), or (3) of section 101(a); and (2) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 101(h); if the Attorney General reports such minimization procedures and any changes thereto to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate at least 30 days prior to the effective date of such minimization procedures, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately. (b) Minimization Procedures.--An electronic surveillance authorized by this subsection may be conducted only in accordance with the Attorney General's certification and the minimization procedures. The Attorney General shall assess compliance with such procedures and shall report such assessments to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate under the provisions of section 108(a). (c) Submission of Certification.--The Attorney General shall immediately transmit under seal to the court established under section 103(a) a copy of his certification. Such certification shall be maintained under security measures established by the Chief Justice with the concurrence of the Attorney General, in consultation with the Director of National Intelligence, and shall remain sealed unless-- (1) an application for a court order with respect to the surveillance is made under section 104; or (2) the certification is necessary to determine the legality of the surveillance under section 106(f). AUTHORIZATION FOR ACQUISITION OF FOREIGN INTELLIGENCE INFORMATION Sec. 102A. (a) In General.--Notwithstanding any other law, the President, acting through the Attorney General may, for periods of up to one year, authorize the acquisition of foreign intelligence information concerning a person reasonably believed to be outside the United States if the Attorney General certifies in writing under oath that-- (1) the acquisition does not constitute electronic surveillance; (2) the acquisition involves obtaining the foreign intelligence information from or with the assistance of a wire or electronic communications service provider, custodian, or other person (including any officer, employee, agent, or other specified person of such service provider, custodian, or other person) who has access to wire or electronic communications, either as they are transmitted or while they are stored, or equipment that is being or may be used to transmit or store such communications; (3) a significant purpose of the acquisition is to obtain foreign intelligence information; and (4) the proposed minimization procedures with respect to such acquisition activity meet the definition of minimization procedures under section 101(h). (b) Specific Place Not Required.--A certification under subsection (a) is not required to identify the specific facilities, places, premises, or property at which the acquisition of foreign intelligence information will be directed. (c) Submission of Certification.--The Attorney General shall immediately transmit under seal to the court established under section 103(a) a copy of a certification made under subsection (a). Such certification shall be maintained under security measures established by the Chief Justice of the United States and the Attorney General, in consultation with the Director of National Intelligence, and shall remain sealed unless the certification is necessary to determine the legality of the acquisition under section 102B. (d) Minimization Procedures.--An acquisition under this section may be conducted only in accordance with the certification of the Attorney General and the minimization procedures adopted by the Attorney General. The Attorney General shall assess compliance with such procedures and shall report such assessments to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate under section 108(a). DIRECTIVES RELATING TO ELECTRONIC SURVEILLANCE AND OTHER ACQUISITIONS OF FOREIGN INTELLIGENCE INFORMATION Sec. 102B. (a) Directive.--With respect to an authorization of electronic surveillance under section 102 or an authorization of an acquisition under section 102A, the Attorney General may direct a person to-- (1) immediately provide the Government with all information, facilities, and assistance necessary to accomplish the acquisition of foreign intelligence information in such a manner as will protect the secrecy of the electronic surveillance or acquisition and produce a minimum of interference with the services that such person is providing to the target; and (2) maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the electronic surveillance or acquisition or the aid furnished that such person wishes to maintain. (b) Compensation.--The Government shall compensate, at the prevailing rate, a person for providing information, facilities, or assistance pursuant to subsection (a). (c) Failure to Comply.--In the case of a failure to comply with a directive issued pursuant to subsection (a), the Attorney General may petition the court established under section 103(a) to compel compliance with the directive. The court shall issue an order requiring the person or entity to comply with the directive if it finds that the directive was issued in accordance with section 102(a) or 102A(a) and is otherwise lawful. Failure to obey an order of the court may be punished by the court as contempt of court. Any process under this section may be served in any judicial district in which the person or entity may be found. (d) Review of Petitions.--(1) In General.--(A) Challenge.--A person receiving a directive issued pursuant to subsection (a) may challenge the legality of that directive by filing a petition with the pool established under section 103(e)(1). (B) Assignment of Judge.--The presiding judge designated pursuant to section 103(b) shall assign a petition filed under subparagraph (A) to one of the judges serving in the pool established by section 103(e)(1). Not later than 24 hours after the assignment of such petition, the assigned judge shall conduct an initial review of the directive. If the assigned judge determines that the petition is frivolous, the assigned judge shall deny the petition and affirm the directive or any part of the directive that is the subject of the petition. If the assigned judge determines the petition is not frivolous, the assigned judge shall, within 72 hours, consider the petition in accordance with the procedures established under section 103(e)(2) and provide a written statement for the record of the reasons for any determination under this subsection. (2) Standard of Review.--A judge considering a petition to modify or set aside a directive may grant such petition only if the judge finds that such directive does not meet the requirements of this section or is otherwise unlawful. If the judge does not modify or set aside the directive, the judge shall affirm such directive, and order the recipient to comply with such directive. (3) Directives Not Modified.--Any directive not explicitly modified or set aside under this subsection shall remain in full effect. (e) Appeals.--The Government or a person receiving a directive reviewed pursuant to subsection (d) may file a petition with the court of review established under section 103(b) for review of the decision issued pursuant to subsection (d) not later than 7 days after the issuance of such decision. Such court of review shall have jurisdiction to consider such petitions and shall provide for the record a written statement of the reasons for its decision. On petition by the Government or any person receiving such directive for a writ of certiorari, the record shall be transmitted under seal to the Supreme Court, which shall have jurisdiction to review such decision. (f) Proceedings.--Judicial proceedings under this section shall be concluded as expeditiously as possible. The record of proceedings, including petitions filed, orders granted, and statements of reasons for decision, 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 National Intelligence. (g) Sealed Petitions.--All petitions under this section shall be filed under seal. In any proceedings under this section, the court shall, upon request of the Government, review ex parte and in camera any Government submission, or portions of a submission, which may include classified information. (h) Liability.--No cause of action shall lie in any court against any person for providing any information, facilities, or assistance in accordance with a directive under this section. (i) Use of Information.--Information acquired pursuant to a directive by the Attorney General under this section 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 section 102(a) or 102A(a). No otherwise privileged communication obtained in accordance with, or in violation of, the provisions of this section shall lose its privileged character. No information from an electronic surveillance under section 102 or an acquisition pursuant to section 102A may be used or disclosed by Federal officers or employees except for lawful purposes. (j) Use in Law Enforcement.--No information acquired pursuant to this section shall be disclosed for law enforcement purposes unless such disclosure is accompanied by a statement that such information, or any information derived from such information, may only be used in a criminal proceeding with the advance authorization of the Attorney General. (k) Disclosure in Trial.--If the Government intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding 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 an electronic surveillance conducted under section 102 or an acquisition authorized pursuant to section 102A, the Government shall, prior to the trial, hearing, or other proceeding or at a reasonable time prior to an effort to disclose or 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 Government intends to disclose or use such information. (l) Disclosure in State Trials.--If a State or political subdivision of a State intends to enter into evidence or otherwise use or 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 of a State, against an aggrieved person, any information obtained or derived from an electronic surveillance authorized pursuant to section 102 or an acquisition authorized pursuant to section 102A, the State or political subdivision of such State 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 intends to disclose or use such information. (m) Motion to Exclude Evidence.--(1) In General.--Any person against whom evidence obtained or derived from an electronic surveillance authorized pursuant to section 102 or an acquisition authorized pursuant to section 102A is to be, or has been, 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 electronic surveillance or such acquisition on the grounds that-- (A) the information was unlawfully acquired; or (B) the electronic surveillance or acquisition was not properly made in conformity with an authorization under section 102(a) or 102A(a). (2) Timing.--A person moving to suppress evidence under paragraph (1) shall make the motion to suppress the evidence 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. (n) Review of Motions.--If a court or other authority is notified pursuant to subsection (k) or (l), a motion is made pursuant to subsection (m), or a 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-- (1) to discover or obtain an Attorney General directive or other materials relating to an electronic surveillance authorized pursuant to section 102 or an acquisition authorized pursuant to section 102A, or (2) to discover, obtain, or suppress evidence or information obtained or derived from an electronic surveillance authorized pursuant to section 102 or an acquisition authorized pursuant to section 102A, 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 an 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 such electronic surveillance or such acquisition as may be necessary to determine whether such electronic surveillance or such acquisition authorized under this section 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 directive or other materials relating to the acquisition only where such disclosure is necessary to make an accurate determination of the legality of the acquisition. (o) Determinations.--If, pursuant to subsection (n), a United States district court determines that the acquisition authorized under this section was not lawfully authorized or conducted, it shall, in accordance with the requirements of law, suppress the evidence which was unlawfully obtained or derived or otherwise grant the motion of the aggrieved person. If the court determines that such acquisition was lawfully authorized and conducted, it shall deny the motion of the aggrieved person except to the extent that due process requires discovery or disclosure. (p) Binding Orders.--Orders granting motions or requests under subsection (m), decisions under this section that an electronic surveillance or an acquisition was not lawfully authorized or conducted, and orders of the United States district court requiring review or granting disclosure of directives, orders, or other materials relating to such acquisition 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. (q) Coordination.--(1) In General.--Federal officers who acquire foreign intelligence information may consult with Federal law enforcement officers or law enforcement personnel of a State or political subdivision of a State, including the chief executive officer of that State or political subdivision who has the authority to appoint or direct the chief law enforcement officer of that State or political subdivision, to coordinate efforts to investigate or protect against-- (A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power; (B) sabotage, international terrorism, or the development or proliferation of weapons of mass destruction by a foreign power or an agent of a foreign power; or (C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power. (2) Certification Required.--Coordination authorized under paragraph (1) shall not preclude the certification required by section 102(a) or 102A(a). (r) Retention of Directives and Orders.--A directive made or an order granted under this section shall be retained for a period of not less than 10 years from the date on which such directive or such order is made. DESIGNATION OF JUDGES Sec. 103. (a) * * * * * * * * * * (g) Applications for a court order under this title are authorized if the President has, by written authorization, empowered the Attorney General to approve applications to the court having jurisdiction under this section, and a judge to whom an application is made may, notwithstanding any other law, grant an order, in conformity with section 105, approving electronic surveillance of a foreign power or an agent of a foreign power for the purpose of obtaining foreign intelligence information. APPLICATION FOR AN ORDER Sec. 104. (a) Each application for an order approving electronic surveillance under this title shall be made by a Federal officer in writing upon oath or affirmation to a judge having jurisdiction under section 103. Each application shall require the approval of the Attorney General based upon his finding that it satisfies the criteria and requirements of such application as set forth in this title. It shall include-- (1) * * * * * * * * * * (6) a [detailed description] summary description of the nature of the information sought and the type of communications or activities to be subjected to the surveillance; (7) a certification or certifications by the Assistant to the President for National Security Affairs or an executive branch official [or officials designated by the President from among those executive officers employed in the area of national security or defense and appointed by the President with the advice and consent of the Senate] designated by the President to authorize electronic surveillance for foreign intelligence purposes-- (A) * * * * * * * * * * (C) that such information cannot reasonably be obtained by normal investigative techniques; and [(D) that designates the type of foreign intelligence information being so