[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 2089 Introduced in Senate (IS)]







106th CONGRESS
  2d Session
                                S. 2089

 To amend the Foreign Intelligence Surveillance Act of 1978 to modify 
procedures relating to orders for surveillance and searches for foreign 
             intelligence purposes, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           February 24, 2000

Mr. Specter (for himself, Mr. Torricelli, Mr. Thurmond, Mr. Biden, Mr. 
   Grassley, Mr. Feingold, Mr. Helms, Mr. Schumer, and Mr. Sessions) 
introduced the following bill; which was read twice and referred to the 
                       Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
 To amend the Foreign Intelligence Surveillance Act of 1978 to modify 
procedures relating to orders for surveillance and searches for foreign 
             intelligence purposes, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Counterintelligence Reform Act of 
2000''.

SEC. 2. CIRCUMSTANCES ESTABLISHING PROBABLE CAUSE FOR ISSUANCE OF 
              ORDERS FOR ELECTRONIC SURVEILLANCE UNDER FOREIGN 
              INTELLIGENCE SURVEILLANCE ACT OF 1978.

    (a) Past Activities.--Section 105 of the Foreign Intelligence 
Surveillance Act of 1978 (50 U.S.C. 1805) is amended--
            (1) by redesignating subsections (b), (c), (d), (e), (f), 
        and (g) as subsections (c), (d), (e), (f), (g), and (h), 
        respectively; and
            (2) by inserting after subsection (a) the following new 
        subsection (b):
    ``(b) In determining whether or not probable cause exists for 
purposes of an order under subsection (a)(3), a judge may consider past 
activities of the target, as well as facts and circumstances relating 
to current or future activities of the target.''.
    (b) Conforming Amendment.--Subsection (d) of that section, as 
redesignated by subsection (a)(1) of this section, is amended by 
striking ``subsection (b)(1)'' and inserting ``subsection (c)(1)''.

SEC. 3. ORDERS FOR ELECTRONIC SURVEILLANCE UNDER FOREIGN INTELLIGENCE 
              SURVEILLANCE ACT OF 1978.

    (a) Description of Intelligence or Law-Enforcement Activities of 
Certain Targets.--Section 104 of the Foreign Intelligence Surveillance 
Act of 1978 (50 U.S.C. 1804) is amended--
            (1) in subsection (a)--
                    (A) by redesignating paragraphs (8), (9), (10), and 
                (11) as paragraphs (9), (10), (11), and (12), 
                respectively; and
                    (B) by inserting after paragraph (7) the following 
                new paragraph (8):
            ``(8) in the case of an application covering a target 
        described in section 101(b)(2), a detailed description of--
                    ``(A) any current relationship between the target 
                and any Federal intelligence, intelligence-related, or 
                law enforcement activity; and
                    ``(B) any prior relationship between the target and 
                any Federal intelligence, intelligence-related, or law 
                enforcement activity that is relevant to a 
                determination of probable cause under section 105;''; 
                and
            (2) in subsection (b), by striking ``(8), and (11)'' and 
        inserting ``(9), and (12)''.
    (b) Additional Requirements Regarding Certain Applications.--That 
section is further amended by adding at the end the following new 
subsection:
    ``(e)(1)(A) Upon written request of the Director of the Federal 
Bureau of Investigation, the Secretary of Defense, the Secretary of 
State, or the Director of Central Intelligence, the Attorney General 
shall personally review under subsection (a) an application under that 
subsection for a target described in section 101(b)(2).
    ``(B) An official referred to in subparagraph (A) may not delegate 
the authority to make a request referred to in that subparagraph.
    ``(2)(A) If as a result of a request under paragraph (1) the 
Attorney General determines not to approve an application under the 
second sentence of subsection (a) for purposes of making the 
application under this section, the Attorney General shall provide 
written notice of the determination to the official making the request 
for the review of the application under that paragraph. The Attorney 
General may not delegate the responsibility set forth in the preceding 
sentence.
    ``(B) Notice with respect to an application under subparagraph (A) 
shall set forth the modifications, if any, of the application that are 
necessary in order for the Attorney General to approve the application 
under the second sentence of subsection (a) for purposes of making the 
application under this section.
    ``(C) Upon review of any modifications of an application set forth 
under subparagraph (B), the official notified of the modifications 
under this paragraph shall modify the application if such official 
determines that such modification is warranted. Such official shall 
supervise the making of any modification under this subparagraph. Such 
official may not delegate the responsibility set forth in the preceding 
sentence.''.

SEC. 4. ORDERS FOR PHYSICAL SEARCHES UNDER FOREIGN INTELLIGENCE 
              SURVEILLANCE ACT OF 1978.

    (a) Description of Intelligence or Law-Enforcement Activities of 
Certain Targets.--Subsection (a) of section 303 of the Foreign 
Intelligence Surveillance Act of 1978 (50 U.S.C. 1823) is amended--
            (1) by redesignating paragraphs (8) and (9) as paragraphs 
        (9) and (10), respectively; and
            (2) by inserting after paragraph (7) the following new 
        paragraph (8):
            ``(8) in the case of an application covering a target 
        described in section 101(b)(2), a detailed description of--
                    ``(A) any current relationship between the target 
                and any Federal intelligence, intelligence-related, or 
                law enforcement activity; and
                    ``(B) any prior relationship between the target and 
                any Federal intelligence, intelligence-related, or law 
                enforcement activity that is relevant to a 
                determination of probable cause under section 304;''.
    (b) Additional Requirements Regarding Certain Applications.--That 
section is further amended by adding at the end the following new 
subsection:
    ``(d)(1)(A) Upon written request of the Director of the Federal 
Bureau of Investigation, the Secretary of Defense, the Secretary of 
State, or the Director of Central Intelligence, the Attorney General 
shall personally review under subsection (a) an application under that 
subsection for a target described in section 101(b)(2).
    ``(B) An official referred to in subparagraph (A) may not delegate 
the authority to make a request referred to in that subparagraph.
    ``(2)(A) If as a result of a request under paragraph (1) the 
Attorney General determines not to approve an application under the 
second sentence of subsection (a) for purposes of making the 
application under this section, the Attorney General shall provide 
written notice of the determination to the official making the request 
for the review of the application under that paragraph. The Attorney 
General may not delegate the responsibility set forth in the preceding 
sentence.
    ``(B) Notice with respect to an application under subparagraph (A) 
shall set forth the modifications, if any, of the application that are 
necessary in order for the Attorney General to approve the application 
under the second sentence of subsection (a) for purposes of making the 
application under this section.
    ``(C) Upon review of any modifications of an application set forth 
under subparagraph (B), the official notified of the modifications 
under this paragraph shall modify the application if such official 
determines that such modification is warranted. Such official shall 
supervise the making of any modification under this subparagraph. Such 
official may not delegate the responsibility set forth in the preceding 
sentence.''.

SEC. 5. DISCLOSURE FOR LAW ENFORCEMENT PURPOSES OF INFORMATION ACQUIRED 
              UNDER FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.

    (a) Regulations Relating to Disclosure.--Not later than 180 days 
after the date of the enactment of this Act, the Attorney General shall 
prescribe in regulations the following:
            (1) The circumstances under which information acquired 
        pursuant to title I of the Foreign Intelligence Surveillance 
        Act of 1978 (50 U.S.C. 1801 et seq.) shall be disclosed for law 
        enforcement purposes under section 106(b) of that Act (50 
        U.S.C. 1806(b)).
            (2) The circumstances under which information acquired 
        pursuant to title III of the Foreign Intelligence Surveillance 
        Act of 1978 (50 U.S.C. 1821 et seq.) shall be disclosed for law 
        enforcement purposes under section 305(c) of that Act (50 
        U.S.C. 1825(c)).
            (3) The circumstances under which information acquired 
        pursuant to title IV of the Foreign Intelligence Surveillance 
        Act of 1978 (50 U.S.C. 1841 et seq.) shall be disclosed for law 
        enforcement purposes under section 405(b) of that Act (50 
        U.S.C. 1845(b)).
    (b) Submittal to Congress.--The Attorney General shall submit to 
the Committees on the Judiciary of the Senate and House of 
Representatives the regulations prescribed by the Attorney General 
under subsection (a).

SEC. 6. COORDINATION OF COUNTERINTELLIGENCE WITH THE FEDERAL BUREAU OF 
              INVESTIGATION.

    (a) Treatment of Certain Subjects of Investigation.--Subsection (c) 
of section 811 of the Intelligence Authorization Act for Fiscal Year 
1995 (50 U.S.C. 402a) is amended--
            (1) in paragraphs (1) and (2), by striking ``paragraph 
        (3)'' and inserting ``paragraph (5)'';
            (2) by redesignating paragraphs (3), (4), (5), and (6) as 
        paragraphs (5), (6), (7), and (9), respectively;
            (3) by inserting after paragraph (2) the following new 
        paragraph (3):
    ``(3)(A) The Director of the Federal Bureau of Investigation shall 
notify in writing the head of the department or agency concerned of a 
finding by the Federal Bureau of Investigation that the subject of an 
investigation under paragraph (1) should be left in place for 
investigative purposes.
    ``(B) Not later than 30 days after receiving written notification 
under subparagraph (A), the head of the department or agency so 
notified shall submit to the Director a plan to minimize the 
unauthorized disclosure of classified information by the subject 
concerned.
    ``(C) A plan under this paragraph may be modified if the Director 
and the head of the department or agency concerned jointly determine 
that the modification is warranted. A modification under this 
subparagraph may include a decision that the subject of an 
investigation no longer be left in place for investigative purposes.
    ``(D) A disagreement regarding an element of a plan under 
subparagraph (A), including a proposed modification of the plan under 
subparagraph (C), shall be resolved by the Board.''; and
            (4) in paragraph (5), as so redesignated, by striking 
        ``paragraph (1) or (2)'' and inserting ``paragraph (1), (2), or 
        (3)''.
    (b) Timely Provision of Information and Consultation on Espionage 
Investigations.--Paragraph (2) of that subsection is further amended--
            (1) by inserting ``in a timely manner'' after ``through 
        appropriate channels''; and
            (2) by inserting ``in a timely manner'' after ``are 
        consulted''.
    (c) Interference With Full Field Espionage Investigations.--That 
subsection is further amended by inserting after paragraph (3), as 
amended by subsection (a) of this section, the following new paragraph 
(4):
    ``(4)(A) The Federal Bureau of Investigation shall notify 
appropriate officials within the executive branch, including the head 
of the department or agency concerned, of the commencement of a full 
field espionage investigation with respect to an employee within the 
executive branch.
    ``(B)(i) A department or agency may not conduct a polygraph 
examination, interrogate, or otherwise take any action that is likely 
to alert an employee covered by a notice under subparagraph (A) of an 
investigation described in that subparagraph without prior coordination 
with the Federal Bureau of Investigation.
    ``(ii) Any examination, interrogation, or other action taken under 
clause (i) shall be taken in consultation with the Federal Bureau of 
Investigation.''.
    (d) Coordination of Information on Espionage Investigations.--That 
subsection is further amended by inserting after paragraph (7), as 
redesignated by subsection (a)(2) of this section, the following new 
paragraph (8):
    ``(8) The Director of the Federal Bureau of Investigation shall be 
responsible for coordinating all information relating to espionage 
investigations, including information on any prior or current 
relationship between the subjects of such investigations and any 
Federal intelligence or intelligence-related activity, within the 
intelligence community and within and among Federal law enforcement 
agencies.''.
    (e) Requests for Technical Assistance.--That section is further 
amended by adding at the end the following new subsection (d):
    ``(d) Requests for Technical Assistance.--The Director of the 
Federal Bureau of Investigation and the Director of the National 
Security Agency shall establish procedures to ensure the timely 
evaluation and determinations regarding requests from the Federal 
Bureau of Investigation for technical assistance in counterintelligence 
activities covered by this section.''.

SEC. 7. SEVERABILITY.

    If any provision of this Act (including an amendment made by this 
Act), or the application thereof, to any person or circumstance, is 
held invalid, the remainder of this Act (including the amendments made 
by this Act), and the application thereof, to other persons or 
circumstances shall not be affected thereby.
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