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








109th CONGRESS
  2d Session
                                H. R. 5825

      To update the Foreign Intelligence Surveillance Act of 1978.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             July 18, 2006

    Mrs. Wilson of New Mexico (for herself, Mr. Sensenbrenner, Mr. 
  Hoekstra, Mr. Renzi, Mrs. Johnson of Connecticut, Mr. Everett, Mr. 
    Thornberry, Mr. Rogers of Michigan, Mr. Gallegly, and Mr. Issa) 
 introduced the following bill; which was referred to the Committee on 
the Judiciary, and in addition to the Select Committee on Intelligence 
 (Permanent Select), for a period to be subsequently determined by the 
  Speaker, in each case for consideration of such provisions as fall 
           within the jurisdiction of the committee concerned

_______________________________________________________________________

                                 A BILL


 
      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 new subparagraph:
                    ``(D) possesses or is reasonably expected to 
                transmit or receive foreign intelligence information 
                while in the United States; 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 a surveillance device for 
        the intentional collection of information relating to a person 
        who is reasonably believed to be in the United States by 
        intentionally targeting that person, under circumstances in 
        which the 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, without the consent of a party to the 
        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 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) Physical Search.--Section 301(5) of the Foreign Intelligence 
Surveillance Act of 1978 (50 U.S.C. 1821(5)) is amended by striking 
``Act, or (B)'' and inserting ``Act, (B) activities described in 
section 102(b) of this Act, or (C)''.

SEC. 3. AUTHORIZATION FOR ELECTRONIC SURVEILLANCE FOR FOREIGN 
              INTELLIGENCE PURPOSES.

    Section 102 of the Foreign Intelligence Surveillance Act of 1978 
(50 U.S.C. 1802) is amended--
            (1) in subsection (a)(1)--
                    (A) in subparagraph (A)--
                            (i) in clause (i), by striking 
                        ``transmitted by means of'' and all that 
                        follows and inserting ``of a foreign power, as 
                        defined in paragraph (1), (2), or (3) of 
                        section 101(a), or an agent of a foreign power, 
                        as defined in section 101(b)(1); or''; and
                            (ii) in clause (ii), by striking ``or 
                        (3);'' and inserting ``or (3); and'';
                    (B) by striking subparagraph (B); and
                    (C) by redesignating subparagraph (C) as 
                subparagraph (B);
            (2) by striking subsection (a)(4);
            (3) in subsection (b), to read as follows:
    ``(b)(1) The Attorney General may require, by written 
certification, any person with authorized access to electronic 
communications or equipment used to transmit or store electronic 
communications to provide information, facilities, or technical 
assistance--
            ``(A) necessary to accomplish electronic surveillance 
        authorized under subsection (a); or
            ``(B) to an official designated by the President for a 
        period of up to one year, provided the Attorney General 
        certifies in writing, under oath, that the provision of the 
        information, facilities, or technical assistance does not 
        constitute electronic surveillance.
    ``(2) The Attorney General may require a person providing 
information, facilities, or technical assistance under paragraph (1) 
to--
            ``(A) provide the information, facilities, or technical 
        assistance in such a manner as will protect the secrecy of the 
        provision of such information, facilities, or technical 
        assistance and produce a minimum of interference with the 
        services that such person is providing the customers of such 
        person; and
            ``(B) maintain under security procedures approved by the 
        Attorney General and the Director of National Intelligence any 
        records concerning such electronic surveillance or the 
        information, facilities, or technical assistance provided which 
        such person wishes to retain.
    ``(3) The Government shall compensate, at the prevailing rate, a 
person for providing information, facilities, or technical assistance 
pursuant to paragraph (1).''; and
            (4) by adding at the end the following new subsection:
    ``(c) Notwithstanding any other provision of law, the President may 
designate an official who may authorize electronic surveillance of 
international radio communications of a diplomat or diplomatic mission 
or post of the government of a foreign country in the United States in 
accordance with procedures approved by the Attorney General.''.

SEC. 4. 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) by striking paragraphs (6), (9), and (11);
                    (B) by redesignating paragraphs (7), (8), and (10) 
                as paragraphs (6), (7), and (8), respectively;
                    (C) in paragraph (6), as redesignated by 
                subparagraph (B)--
                            (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 subparagraphs (D) and (E) 
                        and inserting the following:
                    ``(D) including a statement of the basis for the 
                certification that the information sought is the type 
                of foreign intelligence information designated;'';
                    (D) in paragraph (7), as redesignated by 
                subparagraph (B)--
                            (i) by striking ``a statement of the means 
                        by which the surveillance will be effected 
                        and''; and
                            (ii) by adding ``and'' at the end; and
                    (E) in paragraph (8), as redesignated by 
                subparagraph (B), by striking ``; and'' and inserting a 
                period;
            (2) by striking subsection (b); and
            (3) by redesignating subsections (c), (d), and (e) as 
        subsections (b), (c), and (d), respectively.

SEC. 5. 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), (3), (4), and 
                (5) as paragraphs (1), (2), (3), and (4), respectively;
            (2) in subsection (c)(1)--
                    (A) in subparagraph (B), by striking ``known;'' and 
                inserting ``known; and'';
                    (B) by striking subparagraphs (C), (D), and (F);
                    (C) by redesignating subparagraph (E) as 
                subparagraph (C); and
                    (D) in subparagraph (C), as redesignated by 
                subparagraph (C), by striking ``approved; and'' and 
                inserting ``approved.'';
            (3) by striking subsection (d);
            (4) by redesignating subsections (e), (f), (g), (h), and 
        (i) as subsections (d), (e), (f), (g), and (h), respectively;
            (5) in subsection (d), as redesignated by paragraph (4)--
                    (A) in paragraph (1), by striking ``for the period 
                necessary'' and all that follows and insert ``for a 
                period not to exceed one year.''; and
                    (B) in paragraph (2), by striking ``original order, 
                except that'' and all that follows and inserting 
                ``original order 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 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 120 hours after the official 
        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 120 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.''; and
            (7) in subsection (h), as redesignated by paragraph (4)--
                    (A) by striking ``in accordance with a court 
                order'' and all that follows and inserting ``--''; and
                    (B) by adding at the end the following new 
                paragraphs:
            ``(1) in accordance with a court order or request for 
        emergency assistance under this Act for electronic surveillance 
        or physical search; or
            ``(2) 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 that does not constitute electronic surveillance.''.

SEC. 6. 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. 7. 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 60 days following 
an armed attack against the territory of the United States if the 
President submits to each member of the congressional intelligence 
committee 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 60 days 
following an armed attack against the territory of the United States if 
the President submits to each member of the congressional intelligence 
committee notification of the authorization under this section.''.

SEC. 8. 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 subsection (d), 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 45 days following a terrorist attack against the 
United States if the President submits a notification to each member of 
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.--Subject to subsection (d), at the 
end of the 45-day period described in subsection (a), and every 45 days 
thereafter, the President may submit a subsequent certification to each 
member of 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 45 days. 
The President shall be authorized to conduct electronic surveillance 
under this section for an additional 45 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 subsection when 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 (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 90 days unless the President, acting through the 
Attorney General, submits a certification to each member of 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 
each member of 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. 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 final 
                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. TECHNICAL AND CONFORMING AMENDMENTS.

    The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 
et seq.) is further amended--
            (1) in section 102(a)(3)(A), by striking ``101(h)(4) and'';
            (2) in section 105(a)(5)--
                    (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)''.
                                 <all>