[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5825 Engrossed in House (EH)]


  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
109th CONGRESS
  2d Session
                                H. R. 5825

_______________________________________________________________________

                                 AN ACT


 
      To update the Foreign Intelligence Surveillance Act of 1978.

    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 ``Electronic Surveillance 
Modernization Act''.

SEC. 2. 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) Minimization Procedures.--Subsection (h) of such section is 
amended--
            (1) in paragraph (2), by striking ``importance;'' and 
        inserting ``importance; and'';
            (2) in paragraph (3), by striking ``; and'' and inserting 
        ``.''; and
            (3) by striking paragraph (4).
    (d) Wire Communication and Surveillance Device.--Subsection (l) of 
such section is amended to read as follows:
    ``(l) `Surveillance device' is a device that allows surveillance by 
the Federal Government, but excludes any device that extracts or 
analyzes information from data that has already been acquired by the 
Federal Government by lawful means.''.
    (e) 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. 3. 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. 4. 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. 5. 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. 6. 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, the 
Attorney General may authorize the emergency employment of electronic 
surveillance if the Attorney General--
            ``(1) 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) determines that the factual basis for issuance of an 
        order under this title to approve such electronic surveillance 
        exists;
            ``(3) informs a judge having jurisdiction under section 103 
        at the time of such authorization that the decision has been 
        made to employ emergency electronic surveillance; and
            ``(4) makes an application in accordance with this title to 
        a judge having jurisdiction under section 103 as soon as 
        practicable, but not more than 168 hours after the Attorney 
        General authorizes such surveillance.
If the Attorney General authorizes such emergency employment of 
electronic surveillance, the Attorney General shall require 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 168 hours from the 
time of authorization by the Attorney General, whichever is earliest. 
In the event that such application for approval 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 under this subsection 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. 7. 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. 8. 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)(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
            (2) by striking subsection (b) and inserting the following:
    ``(b) On a semiannual basis, the Attorney General additionally 
shall fully inform the Permanent Select Committee on Intelligence of 
the House of Representatives and the Select Committee on Intelligence 
of the Senate on electronic surveillance conducted without a court 
order.''.
    (b) Intelligence Activities.--The National Security Act of 1947 (50 
U.S.C. 401 et seq.) is amended--
            (1) in section 501 (50 U.S.C. 413)--
                    (A) by redesignating subsection (f) as subsection 
                (g); and
                    (B) by inserting after subsection (e) the following 
                new subsection:
    ``(f) The Chair of each of the congressional intelligence 
committees, in consultation with the ranking member of the committee 
for which the person is Chair, may inform--
            ``(1) on a bipartisan basis, all members or any individual 
        members of such committee, and
            ``(2) any essential staff of such committee,
of a report submitted under subsection (a)(1) or subsection (b) as such 
Chair considers necessary.'';
            (2) in section 502 (50 U.S.C. 414), by adding at the end 
        the following new subsection:
    ``(d) Informing of Committee Members.--The Chair of each of the 
congressional intelligence committees, in consultation with the ranking 
member of the committee for which the person is Chair, may inform--
            ``(1) on a bipartisan basis, all members or any individual 
        members of such committee, and
            ``(2) any essential staff of such committee,
of a report submitted under subsection (a) as such Chair considers 
necessary.''; and
            (3) in section 503 (50 U.S.C. 415), by adding at the end 
        the following new subsection:
    ``(g) The Chair of each of the congressional intelligence 
committees, in consultation with the ranking member of the committee 
for which the person is Chair, may inform--
            ``(1) on a bipartisan basis, all members or any individual 
        members of such committee, and
            ``(2) any essential staff of such committee,
of a report submitted under subsection (b), (c), or (d) as such Chair 
considers necessary.''.

SEC. 9. 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 6(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. 10. 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, claim, or proceeding 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 the 
provision to an element of the intelligence community of any 
information (including records or other information pertaining to a 
customer), facilities, or assistance during the period of time 
beginning on September 11, 2001, and ending on the date that is 60 days 
after the date of the enactment of this Act, in connection with any 
alleged communications intelligence program 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, claims, or proceedings pending on or after the 
effective date of this Act.
    (b) Jurisdiction.--Any action, claim, or proceeding 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) Intelligence community.--The term ``intelligence 
        community'' has the meaning given the term in section 3(4) of 
        the National Security Act of 1947 (50 U.S.C. 401a(4)).
            (2) Person.--The term ``person'' has the meaning given the 
        term in section 2510(6) of title 18, United States Code.

SEC. 11. 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 during 
the course of a communications activity conducted by the National 
Security Agency.
    (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.

SEC. 12. AUTHORIZATION AFTER AN ARMED ATTACK.

    (a) Electronic Surveillance.--Section 111 of the Foreign 
Intelligence Surveillance Act of 1978 (50 U.S.C. 1811) is amended by 
striking ``for a period not to exceed'' and all that follows and 
inserting the following: ``for a period not to exceed 90 days following 
an armed attack against the territory of the United States if the 
President submits to the Permanent Select Committee on Intelligence of 
the House of Representatives and the Select Committee on Intelligence 
of the Senate notification of the authorization under this section.''.
    (b) Physical Search.--Section 309 of such Act (50 U.S.C. 1829) is 
amended by striking ``for a period not to exceed'' and all that follows 
and inserting the following: ``for a period not to exceed 90 days 
following an armed attack against the territory of the United States if 
the President submits to the Permanent Select Committee on Intelligence 
of the House of Representatives and the Select Committee on 
Intelligence of the Senate notification of the authorization under this 
section.''.

SEC. 13. AUTHORIZATION OF ELECTRONIC SURVEILLANCE AFTER A TERRORIST 
              ATTACK.

    The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 
et seq.) is further amended--
            (1) by adding at the end of title I the following new 
        section:

  ``authorization following a terrorist attack upon the united states

    ``Sec. 112.  (a) In General.--Notwithstanding any other provision 
of law, but subject to the provisions of this section, the President, 
acting through the Attorney General, may authorize electronic 
surveillance without an order under this title to acquire foreign 
intelligence information for a period not to exceed 90 days following a 
terrorist attack against the United States if the President submits a 
notification to the congressional intelligence committees and a judge 
having jurisdiction under section 103 that--
            ``(1) the United States has been the subject of a terrorist 
        attack; and
            ``(2) identifies the terrorist organizations or affiliates 
        of terrorist organizations believed to be responsible for the 
        terrorist attack.
    ``(b) Subsequent Certifications.--At the end of the 90-day period 
described in subsection (a), and every 90 days thereafter, the 
President may submit a subsequent certification to the congressional 
intelligence committees and a judge having jurisdiction under section 
103 that the circumstances of the terrorist attack for which the 
President submitted a certification under subsection (a) require the 
President to continue the authorization of electronic surveillance 
under this section for an additional 90 days. The President shall be 
authorized to conduct electronic surveillance under this section for an 
additional 90 days after each such subsequent certification.
    ``(c) Electronic Surveillance of Individuals.--The President, or an 
official designated by the President to authorize electronic 
surveillance, may only conduct electronic surveillance of a person 
under this section if the President or such official determines that--
            ``(1) there is a reasonable belief that such person is 
        communicating with a terrorist organization or an affiliate of 
        a terrorist organization that is reasonably believed to be 
        responsible for the terrorist attack; and
            ``(2) the information obtained from the electronic 
        surveillance may be foreign intelligence information.
    ``(d) Minimization Procedures.--The President may not authorize 
electronic surveillance under this section until the Attorney General 
approves minimization procedures for electronic surveillance conducted 
under this section.
    ``(e) United States Persons.--Notwithstanding subsection (a) or 
(b), the President may not authorize electronic surveillance of a 
United States person under this section without an order under this 
title for a period of more than 60 days unless the President, acting 
through the Attorney General, submits a certification to the 
congressional intelligence committees that--
            ``(1) the continued electronic surveillance of the United 
        States person is vital to the national security of the United 
        States;
            ``(2) describes the circumstances that have prevented the 
        Attorney General from obtaining an order under this title for 
        continued surveillance;
            ``(3) describes the reasons for believing the United States 
        person is affiliated with or in communication with a terrorist 
        organization or affiliate of a terrorist organization that is 
        reasonably believed to be responsible for the terrorist attack; 
        and
            ``(4) describes the foreign intelligence information 
        derived from the electronic surveillance conducted under this 
        section.
    ``(f) Use of Information.--Information obtained pursuant to 
electronic surveillance under this subsection may be used to obtain an 
order authorizing subsequent electronic surveillance under this title.
    ``(g) Reports.--Not later than 14 days after the date on which the 
President submits a certification under subsection (a), and every 30 
days thereafter until the President ceases to authorize electronic 
surveillance under subsection (a) or (b), the President shall submit to 
the congressional intelligence committees a report on the electronic 
surveillance conducted under this section, including--
            ``(1) a description of each target of electronic 
        surveillance under this section; and
            ``(2) the basis for believing that each target is in 
        communication with a terrorist organization or an affiliate of 
        a terrorist organization.
    ``(h) Congressional Intelligence Committees Defined.--In this 
section, the term `congressional intelligence committees' means the 
Permanent Select Committee on Intelligence of the House of 
Representatives and the Select Committee on Intelligence of the 
Senate.''; and
            (2) in the table of contents in the first section, by 
        inserting after the item relating to section 111 the following 
        new item:

``Sec. 112. Authorization following a terrorist attack upon the United 
                            States.''.

SEC. 14. AUTHORIZATION OF ELECTRONIC SURVEILLANCE DUE TO IMMINENT 
              THREAT.

    The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 
et seq.) is further amended--
            (1) by adding at the end of title I the following new 
        section:

                 ``authorization due to imminent threat

    ``Sec. 113.  (a) In General.--Notwithstanding any other provision 
of law, but subject to the provisions of this section, the President, 
acting through the Attorney General, may authorize electronic 
surveillance without an order under this title to acquire foreign 
intelligence information for a period not to exceed 90 days if the 
President submits to the congressional leadership, the congressional 
intelligence committees, and the Foreign Intelligence Surveillance 
Court a written notification that the President has determined that 
there exists an imminent threat of attack likely to cause death, 
serious injury, or substantial economic damage to the United States. 
Such notification--
            ``(1) shall be submitted as soon as practicable, but in no 
        case later than 5 days after the date on which the President 
        authorizes electronic surveillance under this section;
            ``(2) shall specify the entity responsible for the threat 
        and any affiliates of the entity;
            ``(3) shall state the reason to believe that the threat of 
        imminent attack exists;
            ``(4) shall state the reason the President needs broader 
        authority to conduct electronic surveillance in the United 
        States as a result of the threat of imminent attack;
            ``(5) shall include a description of the foreign 
        intelligence information that will be collected and the means 
        that will be used to collect such foreign intelligence 
        information; and
            ``(6) may be submitted in classified form.
    ``(b) Subsequent Certifications.--At the end of the 90-day period 
described in subsection (a), and every 90 days thereafter, the 
President may submit a subsequent written notification to the 
congressional leadership, the congressional intelligence committees, 
the other relevant committees, and the Foreign Intelligence 
Surveillance Court that the circumstances of the threat for which the 
President submitted a written notification under subsection (a) require 
the President to continue the authorization of electronic surveillance 
under this section for an additional 90 days. The President shall be 
authorized to conduct electronic surveillance under this section for an 
additional 90 days after each such subsequent written notification.
    ``(c) Electronic Surveillance of Individuals.--The President, or an 
official designated by the President to authorize electronic 
surveillance, may only conduct electronic surveillance of a person 
under this section if the President or such official determines that--
            ``(1) there is a reasonable belief that such person is 
        communicating with an entity or an affiliate of an entity that 
        is reasonably believed to be responsible for imminent threat of 
        attack; and
            ``(2) the information obtained from the electronic 
        surveillance may be foreign intelligence information.
    ``(d) Minimization Procedures.--The President may not authorize 
electronic surveillance under this section until the Attorney General 
approves minimization procedures for electronic surveillance conducted 
under this section.
    ``(e) United States Persons.--Notwithstanding subsections (a) and 
(b), the President may not authorize electronic surveillance of a 
United States person under this section without an order under this 
title for a period of more than 60 days unless the President, acting 
through the Attorney General, submits a certification to the 
congressional intelligence committees that--
            ``(1) the continued electronic surveillance of the United 
        States person is vital to the national security of the United 
        States;
            ``(2) describes the circumstances that have prevented the 
        Attorney General from obtaining an order under this title for 
        continued surveillance;
            ``(3) describes the reasons for believing the United States 
        person is affiliated with or in communication with an entity or 
        an affiliate of an entity that is reasonably believed to be 
        responsible for imminent threat of attack; and
            ``(4) describes the foreign intelligence information 
        derived from the electronic surveillance conducted under this 
        section.
    ``(f) Use of Information.--Information obtained pursuant to 
electronic surveillance under this subsection may be used to obtain an 
order authorizing subsequent electronic surveillance under this title.
    ``(g) Definitions.--In this section:
            ``(1) Congressional intelligence committees.--The term 
        `congressional intelligence committees' means the Permanent 
        Select Committee on Intelligence of the House of 
        Representatives and the Select Committee on Intelligence of the 
        Senate.
            ``(2) Congressional leadership.--The term `congressional 
        leadership' means the Speaker and minority leader of the House 
        of Representatives and the majority leader and minority leader 
        of the Senate.
            ``(3) Foreign intelligence surveillance court.--The term 
        `Foreign Intelligence Surveillance Court' means the court 
        established under section 103(a).
            ``(4) Other relevant committees.--The term `other relevant 
        committees' means the Committees on Appropriations, the 
        Committees on Armed Services, and the Committees on the 
        Judiciary of the House of Representatives and the Senate.''; 
        and
            (2) in the table of contents in the first section, by 
        inserting after the item relating to section 112, as added by 
        section 13(2), the following new item:

``Sec. 113. Authorization due to imminent threat.''.

SEC. 15. TECHNICAL AND CONFORMING AMENDMENTS.

    The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 
et seq.) is further amended--
            (1) in section 105(a)(4), as redesignated by section 
        6(1)(B)--
                    (A) by striking ``104(a)(7)(E)'' and inserting 
                ``104(a)(7)(D)''; and
                    (B) by striking ``104(d)'' and inserting 
                ``104(c)'';
            (2) in section 106(j), in the matter preceding paragraph 
        (1), by striking ``105(e)'' and inserting ``105(d)''; and
            (3) in section 108(a)(2)(C), by striking ``105(f)'' and 
        inserting ``105(e)''.

            Passed the House of Representatives September 28, 2006.

            Attest:

                                                                 Clerk.
109th CONGRESS

  2d Session

                               H. R. 5825

_______________________________________________________________________

                                 AN ACT

      To update the Foreign Intelligence Surveillance Act of 1978.