[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3356 Introduced in House (IH)]







110th CONGRESS
  1st Session
                                H. R. 3356

To amend the Foreign Intelligence Surveillance Act of 1978 to establish 
      a procedure for authorizing certain electronic surveillance.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             August 3, 2007

    Mr. Reyes (for himself, Mr. Conyers, Mr. Schiff, and Mr. Flake) 
 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; which was 
                    considered and failed of passage

_______________________________________________________________________

                                 A BILL


 
To amend the Foreign Intelligence Surveillance Act of 1978 to establish 
      a procedure for authorizing certain electronic surveillance.

    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 ``Improving Foreign Intelligence 
Surveillance to Defend the Nation and the Constitution Act of 2007''.

SEC. 2. PURPOSE.

    The purpose of this Act is to facilitate the acquisition of foreign 
intelligence information by providing for the electronic surveillance 
of persons reasonably believed to be outside the United States pursuant 
to methodologies proposed by the Attorney General, reviewed by the 
Foreign Intelligence Surveillance Court, and applied by the Attorney 
General without further court approval, unless otherwise required under 
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et 
seq.).

SEC. 3. ADDITIONAL PROCEDURE FOR AUTHORIZING CERTAIN ELECTRONIC 
              SURVEILLANCE.

    (a) In General.--The Foreign Intelligence Surveillance Act of 1978 
(50 U.S.C. 1801 et seq.) is amended by inserting after section 105 the 
following:

   ``clarification of electronic surveillance of persons outside the 
                             united states

    ``Sec. 105A.  Notwithstanding any other provision of this Act, a 
court order is not required for the acquisition of the contents of any 
communication between persons that are not located within the United 
States for the purpose of collecting foreign intelligence information, 
without respect to whether the communication passes through the United 
States or the surveillance device is located within the United States.

 ``additional procedure for authorizing certain electronic surveillance

    ``Sec. 105B.  (a) In General.--Notwithstanding any other provision 
of this title, the Attorney General, upon the authorization of the 
President, may apply to a judge of the court established under section 
103(a) for an ex parte order, or an extension of an order, authorizing 
electronic surveillance for periods of not more than 1 year, for the 
purpose of acquiring foreign intelligence information, in accordance 
with this section.
    ``(b) Application.--
            ``(1) Specific persons and places not required.--An 
        application for an order, or extension of an order, submitted 
        under subsection (a) shall not be required to identify--
                    ``(A) the persons, other than a foreign power, 
                against whom electronic surveillance will be directed; 
                or
                    ``(B) the specific facilities, places, premises, or 
                property at which the electronic surveillance will be 
                directed.
            ``(2) Contents.--An application for an order, or extension 
        of an order, submitted under subsection (a) shall include--
                    ``(A) a statement that the electronic surveillance 
                is directed at persons reasonably believed to be 
                outside the United States;
                    ``(B) the identity of the Federal officer seeking 
                to conduct such electronic surveillance;
                    ``(C) a description of--
                            ``(i) the methods to be used by the 
                        Attorney General to determine, during the 
                        duration of the order, that there is a 
                        reasonable belief that the targets of the 
                        electronic surveillance are persons outside the 
                        United States; and
                            ``(ii) the procedures to audit the 
                        implementation of the methods described in 
                        clause (i) to achieve the objective described 
                        in that clause;
                    ``(D) a description of the nature of the 
                information sought, including the identity of any 
                foreign power against whom electronic surveillance will 
                be directed; and
                    ``(E) a statement of the means by which the 
                electronic surveillance will be effected and such other 
                information about the surveillance techniques to be 
                used as may be necessary to assess the proposed 
                minimization procedures.
    ``(c) Application Approval; Order.--
            ``(1) Application approval.--A judge considering an 
        application for an order, or extension of an order, submitted 
        under subsection (a) shall approve such application if the 
        Attorney General certifies in writing under oath, and the judge 
        upon consideration of the application determines, that--
                    ``(A) the acquisition does not constitute 
                electronic surveillance within the meaning of paragraph 
                (1) or (3) of section 101(f);
                    ``(B) the methods described by the Attorney General 
                under subsection (b)(2)(B)(i) are reasonably designed 
                to determine whether the persons are outside the United 
                States;
                    ``(C) a significant purpose of the electronic 
                surveillance is to obtain foreign intelligence 
                information; and
                    ``(D) the proposed minimization procedures meet the 
                definition of minimization procedures under section 
                101(h).
            ``(2) Order.--A judge approving an application pursuant to 
        paragraph (1) shall issue an order that--
                    ``(A) authorizes electronic surveillance as 
                requested, or as modified by the judge;
                    ``(B) requires a communications service provider, 
                custodian, or other person who has the lawful authority 
                to access the information, facilities, or technical 
                assistance necessary to accomplish the electronic 
                surveillance, upon the request of the applicant, to 
                furnish the applicant forthwith with such information, 
                facilities, or technical assistance in a manner that 
                will protect the secrecy of the electronic surveillance 
                and produce a minimum of interference with the services 
                that provider, custodian, or other person is providing 
                the target of electronic surveillance;
                    ``(C) requires such communications service 
                provider, custodian, or other person, upon the request 
                of the applicant, to maintain under security procedures 
                approved by the Attorney General and the Director of 
                National Intelligence any records concerning the 
                acquisition or the aid furnished;
                    ``(D) directs the Federal Government to compensate, 
                at the prevailing rate, a person for providing 
                information, facilities, or assistance pursuant to such 
                order; and
                    ``(E) directs the applicant to follow the 
                minimization procedures as proposed or as modified by 
                the court.
            ``(3) Assessment of compliance with minimization 
        procedures.--At or before the end of the period of time for 
        which electronic surveillance is approved by an order or an 
        extension under this section, the judge may assess compliance 
        with the minimization procedures by reviewing the circumstances 
        under which information concerning United States persons was 
        acquired, retained, or disseminated.
    ``(d) Guidelines for Surveillance of United States Persons.--Not 
later than 15 days after the date of the enactment of this section, the 
Attorney General shall establish guidelines that are reasonably 
designed to ensure that an application is filed under section 104, if 
otherwise required by this Act, when the Attorney General seeks to 
initiate electronic surveillance, or continue electronic surveillance 
that began under this section, of a United States person.
    ``(e) Submission of Orders, Guidelines, and Audits.--
            ``(1) Orders.--Upon the entry of an order under subsection 
        (c)(2), the Attorney General shall submit to the appropriate 
        committees of Congress such order.
            ``(2) Guidelines.--Upon the establishment of the guidelines 
        under subsection (d), the Attorney General shall submit to the 
        appropriate committees of Congress and the court established 
        under section 103(a) such guidelines.
            ``(3) Audits.--Not later than 60 days after the date of the 
        enactment of this section, and every 60 days thereafter until 
        the expiration of all orders issued under this section, the 
        Inspector General of the Department of Justice shall complete 
        an audit on the compliance with the guidelines established 
        under subsection (d) and shall submit to the appropriate 
        committees of Congress, the Attorney General, the Director of 
        National Intelligence, and the court established under section 
        103(a)--
                    ``(A) the results of such audit;
                    ``(B) a list of any targets of electronic 
                surveillance under this section determined to be in the 
                United States; and
                    ``(C) the number of persons in the United States 
                whose communications have been intercepted under this 
                section.
    ``(f) Immediate Emergency Authorization.--
            ``(1) In general.--Notwithstanding any other provision of 
        this title, during the first 15 days following the date of the 
        enactment of this section, upon the authorization of the 
        President, the Attorney General may authorize electronic 
        surveillance without a court order under this title until the 
        date that is 15 days after the date on which the Attorney 
        General authorizes such electronic surveillance if the Attorney 
        General determines--
                    ``(A) 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; and
                    ``(B) the electronic surveillance will be directed 
                at persons reasonably believed to be outside the United 
                States.
            ``(2) Pending order.--
                    ``(A) Initial extension.--If at the end of the 
                period in which the Attorney General authorizes 
                electronic surveillance under paragraph (1), the 
                Attorney General has submitted an application for an 
                order under subsection (a) but the court referred to in 
                section 103(a) has not approved or disapproved such 
                application, such court may authorize the Attorney 
                General to extend the emergency authorization of 
                electronic surveillance under paragraph (1) for not 
                more than 15 days.
                    ``(B) Subsequent extension.--If at the end of the 
                extension of the emergency authorization of electronic 
                surveillance under subparagraph (A) the court referred 
                to in section 103(a) has not approved or disapproved 
                the application referred to in subparagraph (A), such 
                court may authorize the Attorney General to extend the 
                emergency authorization of electronic surveillance 
                under paragraph (1) for not more than 15 days.
            ``(3) Maximum length of authorization.--Notwithstanding 
        paragraphs (1) and (2), in no case shall electronic 
        surveillance be authorized under this subsection for a total of 
        more than 45 days without a court order under this title.
            ``(4) Minimization procedures.--The Attorney General shall 
        ensure that any electronic surveillance conducted pursuant to 
        paragraph (1) or (2) is in accordance with minimization 
        procedures that meet the definition of minimization procedures 
        in section 101(h).
            ``(5) Information, facilities, and technical assistance.--
        Pursuant to an authorization of electronic surveillance under 
        this subsection, the Attorney General may direct a 
        communications service provider, custodian, or other person who 
        has the lawful authority to access the information, facilities, 
        or technical assistance necessary to accomplish such electronic 
        surveillance to--
                    ``(A) furnish the Attorney General forthwith with 
                such information, facilities, or technical assistance 
                in a manner that will protect the secrecy of the 
                electronic surveillance and produce a minimum of 
                interference with the services that provider, 
                custodian, or other person is providing the target of 
                electronic surveillance; and
                    ``(B) maintain under security procedures approved 
                by the Attorney General and the Director of National 
                Intelligence any records concerning the acquisition or 
                the aid furnished.
    ``(g) Prohibition on Liability for Providing Assistance.--Section 
105(i), relating to protection from liability for the furnishing of 
information, facilities, or technical assistance pursuant to a court 
order under this Act, shall apply to this section.
    ``(h) Effect of Section on Other Authorities.--The authority under 
this section is in addition to the authority to conduct electronic 
surveillance under sections 104 and 105.
    ``(i) Appropriate Committees of Congress Defined.--In this section, 
the term `appropriate committees of Congress' means--
            ``(1) the Select Committee on Intelligence and the 
        Committee on the Judiciary of the Senate; and
            ``(2) the Permanent Select Committee on Intelligence and 
        the Committee on the Judiciary of the House of 
        Representatives.''.
    (b) Technical and Conforming Amendment.--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 105 the following:

``Sec. 105A. Clarification of electronic surveillance of persons 
                            outside the United States.
``Sec. 105B. Additional procedure for authorizing certain electronic 
                            surveillance.''.
    (c) Sunset.--
            (1) In general.--Except as provided in paragraph (2), 
        effective on the date that is 120 days after the date of the 
        enactment of this Act, sections 105A and 105B of the Foreign 
        Intelligence Surveillance Act of 1978, as added by subsection 
        (a), are hereby repealed.
            (2) Exception.--Any order under section 105B of the Foreign 
        Intelligence Surveillance Act of 1978, as added by this Act, in 
        effect on such date that is 120 days after the date of the 
        enactment of this Act, shall continue in effect until the date 
        of the expiration of such order.
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