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:

105A.

Clarification of electronic surveillance of persons outside the United States

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.

105B.

Additional procedure for authorizing certain electronic surveillance

(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.