110th CONGRESS2d Session In the House of Representatives, U. S., March 14, 2008 HOUSE AMENDMENT TO SENATE AMENDMENT:

That the House agree to the amendment of the Senate to the bill (H.R. 3773) entitled An Act to amend the Foreign Intelligence Surveillance Act of 1978 to establish a procedure for authorizing certain acquisitions of foreign intelligence, and for other purposes, with the following

In lieu of the matter proposed to be inserted by the amendment of the Senate, insert the following:

1.

Short title; table of contents

(a)

Short title

This Act may be cited as the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 or the FISA Amendments Act of 2008. (b)

Table of contents

The table of contents for this Act is as follows: Sec. 1. Short title; table of contents. Title I—Foreign Intelligence Surveillance Sec. 101. Additional procedures regarding certain persons outside the United States. Sec. 102. Statement of exclusive means by which electronic surveillance and interception of certain communications may be conducted. Sec. 103. Submittal to Congress of certain court orders under the Foreign Intelligence Surveillance Act of 1978. Sec. 104. Applications for court orders. Sec. 105. Issuance of an order. Sec. 106. Use of information. Sec. 107. Amendments for physical searches. Sec. 108. Amendments for emergency pen registers and trap and trace devices. Sec. 109. Foreign intelligence surveillance court. Sec. 110. Review of previous actions. Sec. 111. Weapons of mass destruction. Sec. 112. Statute of limitations. Title II—Protection of persons assisting the Government Sec. 201. Statutory defenses. Sec. 202. Technical amendments. Title III—Commission on Warrantless Electronic Surveillance Activities Sec. 301. Commission on Warrantless Electronic Surveillance Activities. Title IV—Other provisions Sec. 401. Severability. Sec. 402. Effective date. Sec. 403. Repeals. Sec. 404. Transition procedures. Sec. 405. No rights under the FISA Amendments Act of 2008 for undocumented aliens. Sec. 406. Surveillance to protect the United States.

. (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— (1)by striking the item relating to title VII; (2)by striking the item relating to section 701; and (3)by adding at the end the following: Title VII—Additional procedures regarding certain persons outside the United States Sec. 701. Definitions. Sec. 702. Procedures for targeting certain persons outside the United States other than United States persons. Sec. 703. Certain acquisitions inside the United States of United States persons outside the United States. Sec. 704. Other acquisitions targeting United States persons outside the United States. Sec. 705. Joint applications and concurrent authorizations. Sec. 706. Use of information acquired under title VII. Sec. 707. Congressional oversight. Sec. 708. Savings provision.. (c)

Technical and Conforming Amendments

(1)

Title 18, United States code

Section 2511(2)(a)(ii)(A) of title 18, United States Code, is amended by inserting or a court order pursuant to section 704 of the Foreign Intelligence Surveillance Act of 1978 after assistance. (2)

Foreign intelligence surveillance act of 1978

Section 601(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1871(a)(1)) is amended— (A)in subparagraph (C), by striking and; and (B)by adding at the end the following new subparagraphs: (E)acquisitions under section 703; and (F)acquisitions under section 704;.

102.

Statement of exclusive means by which electronic surveillance and interception of certain communications may be conducted

(a)

Statement of exclusive means

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

112.

Statement of exclusive means by which electronic surveillance and interception of certain communications may be conducted

(a)Except as provided in subsection (b), the procedures of chapters 119, 121, and 206 of title 18, United States Code, and this Act shall be the exclusive means by which electronic surveillance and the interception of domestic wire, oral, or electronic communications may be conducted. (b)Only an express statutory authorization for electronic surveillance or the interception of domestic wire, oral, or electronic communications, other than as an amendment to this Act or chapters 119, 121, or 206 of title 18, United States Code, shall constitute an additional exclusive means for the purpose of subsection (a).

. (b)

Offense

Section 109(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1809(a)) is amended by striking authorized by statute each place it appears in such section and inserting authorized by this Act, chapter 119, 121, or 206 of title 18, United States Code, or any express statutory authorization that is an additional exclusive means for conducting electronic surveillance under section 112.; and (c)

Conforming Amendments

(1)

Title 18, United States Code

Section 2511(2)(a) of title 18, United States Code, is amended by adding at the end the following: (iii)If a certification under subparagraph (ii)(B) for assistance to obtain foreign intelligence information is based on statutory authority, the certification shall identify the specific statutory provision, and shall certify that the statutory requirements have been met.; and (2)

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 111 the following new item: Sec. 112. Statement of exclusive means by which electronic surveillance and interception of certain communications may be conducted..

103.

Submittal to Congress of certain court orders under the Foreign Intelligence Surveillance Act of 1978

(a)

Inclusion of certain orders in semiannual reports of Attorney General

Subsection (a)(5) of section 601 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1871) is amended by striking (not including orders) and inserting , orders,. (b)

Reports by attorney general on certain other orders

Such section 601 is further amended by adding at the end the following: (c)

Submissions to Congress

The Attorney General shall submit to the committees of Congress referred to in subsection (a)— (1)a copy of any decision, order, or opinion issued by the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review that includes significant construction or interpretation of any provision of this Act, and any pleadings, applications, or memoranda of law associated with such decision, order, or opinion, not later than 45 days after such decision, order, or opinion is issued; and (2)a copy of any such decision, order, or opinion, and any pleadings, applications, or memoranda of law associated with such decision, order, or opinion, that was issued during the 5-year period ending on the date of the enactment of the FISA Amendments Act of 2008 and not previously submitted in a report under subsection (a). (d)

Protection of national security

The Attorney General, in consultation with the Director of National Intelligence, may authorize redactions of materials described in subsection (c) that are provided to the committees of Congress referred to in subsection (a), if such redactions are necessary to protect the national security of the United States and are limited to sensitive sources and methods information or the identities of targets.. (c)

Definitions

Such section 601, as amended by subsections (a) and (b), is further amended by adding at the end the following: (e)

Definitions

In this section: (1)

Foreign intelligence surveillance court

The term Foreign Intelligence Surveillance Court means the court established by section 103(a). (2)

Foreign intelligence surveillance court of review

The term Foreign Intelligence Surveillance Court of Review means the court established by section 103(b)..

104.

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 (2) and (11); (B)by redesignating paragraphs (3) through (10) as paragraphs (2) through (9), respectively; (C)in paragraph (5), as redesignated by subparagraph (B) of this paragraph, by striking detailed; (D)in paragraph (7), as redesignated by subparagraph (B) of this paragraph, by striking statement of and inserting summary statement of; (E)in paragraph (8), as redesignated by subparagraph (B) of this paragraph, by adding and at the end; and (F)in paragraph (9), as redesignated by subparagraph (B) of this paragraph, by striking ; and and inserting a period; (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) of this subsection, by striking or the Director of National Intelligence and inserting the Director of National Intelligence, or the Director of the Central Intelligence Agency.

105.

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 (b), by striking (a)(3) and inserting (a)(2); (3)in subsection (c)(1)— (A)in subparagraph (D), by adding and at the end; (B)in subparagraph (E), by striking ; and and inserting a period; and (C)by striking subparagraph (F); (4)by striking subsection (d); (5)by redesignating subsections (e) through (i) as subsections (d) through (h), respectively; (6)by amending subsection (e), as redesignated by paragraph (5) of this section, to read as follows: (e) (1)Notwithstanding any other provision of this title, the Attorney General may authorize the emergency employment of electronic surveillance if the Attorney General— (A)reasonably 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; (B)reasonably determines that the factual basis for the issuance of an order under this title to approve such electronic surveillance exists; (C)informs, either personally or through a designee, 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 (D)makes an application in accordance with this title to a judge having jurisdiction under section 103 as soon as practicable, but not later than 7 days after the Attorney General authorizes such surveillance. (2)If the Attorney General authorizes the emergency employment of electronic surveillance under paragraph (1), the Attorney General shall require that the minimization procedures required by this title for the issuance of a judicial order be followed. (3)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 7 days from the time of authorization by the Attorney General, whichever is earliest. (4)A denial of the application made under this subsection may be reviewed as provided in section 103. (5)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. (6)The Attorney General shall assess compliance with the requirements of paragraph (5).; and (7)by adding at the end the following: (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, upon the request of the applicant, the judge shall also authorize the installation and use of pen registers and trap and trace devices, and direct the disclosure of the information set forth in section 402(d)(2)..

106.

Use of information

Subsection (i) of section 106 of the Foreign Intelligence Surveillance Act of 1978 (8 U.S.C. 1806) is amended by striking radio communication and inserting communication.

107.

Amendments for physical searches

(a)

Applications

Section 303 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1823) is amended— (1)in subsection (a)— (A)by striking paragraph (2); (B)by redesignating paragraphs (3) through (9) as paragraphs (2) through (8), respectively; (C)in paragraph (2), as redesignated by subparagraph (B) of this paragraph, by striking detailed; and (D)in paragraph (3)(C), as redesignated by subparagraph (B) of this paragraph, by inserting or is about to be before owned; and (2)in subsection (d)(1)(A), by striking or the Director of National Intelligence and inserting the Director of National Intelligence, or the Director of the Central Intelligence Agency. (b)

Orders

Section 304 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1824) 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; and (2)by amending subsection (e) to read as follows: (e) (1)Notwithstanding any other provision of this title, the Attorney General may authorize the emergency employment of a physical search if the Attorney General— (A)reasonably determines that an emergency situation exists with respect to the employment of a physical search to obtain foreign intelligence information before an order authorizing such physical search can with due diligence be obtained; (B)reasonably determines that the factual basis for issuance of an order under this title to approve such physical search exists; (C)informs, either personally or through a designee, a judge of the Foreign Intelligence Surveillance Court at the time of such authorization that the decision has been made to employ an emergency physical search; and (D)makes an application in accordance with this title to a judge of the Foreign Intelligence Surveillance Court as soon as practicable, but not more than 7 days after the Attorney General authorizes such physical search. (2)If the Attorney General authorizes the emergency employment of a physical search under paragraph (1), the Attorney General shall require that the minimization procedures required by this title for the issuance of a judicial order be followed. (3)In the absence of a judicial order approving such physical search, the physical search shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 7 days from the time of authorization by the Attorney General, whichever is earliest. (4)A denial of the application made under this subsection may be reviewed as provided in section 103. (5) (A)In the event that such application for approval is denied, or in any other case where the physical search is terminated and no order is issued approving the physical search, no information obtained or evidence derived from such physical search 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 physical search 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. (B)The Attorney General shall assess compliance with the requirements of subparagraph (A).. (c)

Conforming amendments

The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended— (1)in section 304(a)(4), as redesignated by subsection (b) of this section, by striking 303(a)(7)(E) and inserting 303(a)(6)(E); and (2)in section 305(k)(2), by striking 303(a)(7) and inserting 303(a)(6).

108.

Amendments for emergency pen registers and trap and trace devices

Section 403 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1843) is amended— (1)in subsection (a)(2), by striking 48 hours and inserting 7 days; and (2)in subsection (c)(1)(C), by striking 48 hours and inserting 7 days.

109.

Foreign intelligence surveillance court

(a)

Designation of judges

Subsection (a) of section 103 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803) is amended by inserting at least before seven of the United States judicial circuits. (b)

En banc authority

(1)

In general

Subsection (a) of section 103 of the Foreign Intelligence Surveillance Act of 1978, as amended by subsection (a) of this section, is further amended— (A)by inserting (1) after (a); and (B)by adding at the end the following new paragraph: (2) (A)The court established under this subsection, on its own initiative or upon the request of the Government in any proceeding or a party under section 501(f) or paragraph (4) or (5) of section 703(h), may hold a hearing or rehearing, en banc, when ordered by a majority of the judges that constitute such court upon a determination that— (i)en banc consideration is necessary to secure or maintain uniformity of the court's decisions; or (ii)the proceeding involves a question of exceptional importance. (B)Any authority granted by this Act to a judge of the court established under this subsection may be exercised by the court en banc. When exercising such authority, the court en banc shall comply with any requirements of this Act on the exercise of such authority. (C)For purposes of this paragraph, the court en banc shall consist of all judges who constitute the court established under this subsection.. (2)

Conforming amendments

The Foreign Intelligence Surveillance Act of 1978 is further amended— (A)in subsection (a) of section 103, as amended by this subsection, by inserting (except when sitting en banc under paragraph (2)) after no judge designated under this subsection; and (B)in section 302(c) (50 U.S.C. 1822(c)), by inserting (except when sitting en banc) after except that no judge. (c)

Stay or modification during an appeal

Section 103 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803) is amended— (1)by redesignating subsection (f) as subsection (g); and (2)by inserting after subsection (e) the following new subsection: (f) (1)A judge of the court established under subsection (a), the court established under subsection (b) or a judge of that court, or the Supreme Court of the United States or a justice of that court, may, in accordance with the rules of their respective courts, enter a stay of an order or an order modifying an order of the court established under subsection (a) or the court established under subsection (b) entered under any title of this Act, while the court established under subsection (a) conducts a rehearing, while an appeal is pending to the court established under subsection (b), or while a petition of certiorari is pending in the Supreme Court of the United States, or during the pendency of any review by that court. (2)The authority described in paragraph (1) shall apply to an order entered under any provision of this Act.. (d)

Authority of foreign intelligence surveillance court

Section 103 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803), as amended by this Act, is further amended by adding at the end the following: (i)Nothing in this Act shall be construed to reduce or contravene the inherent authority of the court established by subsection (a) to determine or enforce compliance with an order or a rule of such court or with a procedure approved by such court..

110.

Inspector General review of previous actions

(a)

Definitions

In this section: (1)

Appropriate committees of Congress

The term appropriate committees of Congress means— (A)the Select Committee on Intelligence and the Committee on the Judiciary of the Senate; and (B)the Permanent Select Committee on Intelligence and the Committee on the Judiciary of the House of Representatives. (2)

Foreign Intelligence Surveillance Court

The term Foreign Intelligence Surveillance Court means the court established by section 103(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a)). (3)

President’s Surveillance Program and Program

The terms President’s Surveillance Program and Program mean the intelligence activity involving communications that was authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007, including the program referred to by the President in a radio address on December 17, 2005 (commonly known as the Terrorist Surveillance Program). (b)

Reviews

(1)

Requirement to conduct

The Inspectors General of the Department of Justice, the Office of the Director of National Intelligence, the National Security Agency, and any other element of the intelligence community that participated in the President’s Surveillance Program shall complete a comprehensive review of, with respect to the oversight authority and responsibility of each such Inspector General— (A)all of the facts necessary to describe the establishment, implementation, product, and use of the product of the Program; (B)the procedures and substance of, and access to, the legal reviews of the Program; (C)communications with and participation of individuals and entities in the private sector related to the Program; (D)interaction with the Foreign Intelligence Surveillance Court and transition to court orders related to the Program; and (E)any other matters identified by any such Inspector General that would enable that Inspector General to complete a review of the Program, with respect to such Department or element. (2)

Cooperation and coordination

(A)

Cooperation

Each Inspector General required to conduct a review under paragraph (1) shall— (i)work in conjunction, to the extent practicable, with any other Inspector General required to conduct such a review; and (ii)utilize, to the extent practicable, and not unnecessarily duplicate or delay such reviews or audits that have been completed or are being undertaken by any such Inspector General or by any other office of the Executive Branch related to the Program. (B)

Coordination

The Inspectors General shall designate one of the Inspectors General required to conduct a review under paragraph (1) that is appointed by the President, by and with the advice and consent of the Senate, to coordinate the conduct of the reviews and the preparation of the reports. (c)

Reports

(1)

Preliminary reports

Not later than 60 days after the date of the enactment of this Act, the Inspectors General of the Department of Justice, the Office of the Director of National Intelligence, the National Security Agency, and any other Inspector General required to conduct a review under subsection (b)(1) shall submit to the appropriate committees of Congress an interim report that describes the planned scope of such review. (2)

Final report

Not later than 1 year after the date of the enactment of this Act, the Inspectors General of the Department of Justice, the Office of the Director of National Intelligence, the National Security Agency, and any other Inspector General required to conduct a review under subsection (b)(1) shall submit to the appropriate committees of Congress and the Commission established under section 301(a) a comprehensive report on such reviews that includes any recommendations of any such Inspectors General within the oversight authority and responsibility of any such Inspector General. (3)

Form

A report submitted under this subsection shall be submitted in unclassified form, but may include a classified annex. The unclassified report shall not disclose the name or identity of any individual or entity of the private sector that participated in the Program or with whom there was communication about the Program, to the extent that information is classified. (d)

Resources

(1)

Expedited security clearance

The Director of National Intelligence shall ensure that the process for the investigation and adjudication of an application by an Inspector General or any appropriate staff of an Inspector General for a security clearance necessary for the conduct of the review under subsection (b)(1) is carried out as expeditiously as possible. (2)

Additional personnel for the inspectors general

An Inspector General required to conduct a review under subsection (b)(1) and submit a report under subsection (c) is authorized to hire such additional personnel as may be necessary to carry out such review and prepare such report in a prompt and timely manner. Personnel authorized to be hired under this paragraph— (A)shall perform such duties relating to such a review as the relevant Inspector General shall direct; and (B)are in addition to any other personnel authorized by law.

111.

Weapons of mass destruction

(a)

Definitions

(1)

Foreign power

Subsection (a) of section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(a)) is amended— (A)in paragraph (5), by striking persons; or and inserting persons;; (B)in paragraph (6), by striking the period and inserting ; or; and (C)by adding at the end the following new paragraph: (7)an entity not substantially composed of United States persons that is engaged in the international proliferation of weapons of mass destruction.. (2)

Agent of a foreign power

Subsection (b)(1) of such section 101 is amended— (A)in subparagraph (B), by striking or at the end; and (B)by adding at the end the following new subparagraph: (D)engages in the international proliferation of weapons of mass destruction, or activities in preparation therefor; or. (3)

Foreign intelligence information

Subsection (e)(1)(B) of such section 101 is amended by striking sabotage or international terrorism and inserting sabotage, international terrorism, or the international proliferation of weapons of mass destruction. (4)

Weapon of mass destruction

Such section 101 is amended by adding at the end the following new subsection: (p)Weapon of mass destruction means— (1)any explosive, incendiary, or poison gas device that is intended or has the capability to cause a mass casualty incident; (2)any weapon that is designed or intended to cause death or serious bodily injury to a significant number of persons through the release, dissemination, or impact of toxic or poisonous chemicals or their precursors; (3)any weapon involving a biological agent, toxin, or vector (as such terms are defined in section 178 of title 18, United States Code) that is designed, intended, or has the capability of causing death, illness, or serious bodily injury to a significant number of persons; or (4)any weapon that is designed, intended, or has the capability of releasing radiation or radioactivity causing death, illness, or serious bodily injury to a significant number of persons.. (b)

Use of Information

(1)

In general

Section 106(k)(1)(B) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1806(k)(1)(B)) is amended by striking sabotage or international terrorism and inserting sabotage, international terrorism, or the international proliferation of weapons of mass destruction. (2)

Physical searches

Section 305(k)(1)(B) of such Act (50 U.S.C. 1825(k)(1)(B)) is amended by striking sabotage or international terrorism and inserting sabotage, international terrorism, or the international proliferation of weapons of mass destruction. (c)

Technical and conforming amendment

Section 301(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1821(1)) is amended by inserting weapon of mass destruction , after person,.

112.

Statute of limitations

(a)

In general

Section 109 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1809) is amended by adding at the end the following new subsection: (e)

Statute of limitations

No person shall be prosecuted, tried, or punished for any offense under this section unless the indictment is found or the information is instituted not later than 10 years after the commission of the offense.. (b)

Application

The amendment made by subsection (a) shall apply to any offense committed before the date of the enactment of this Act if the statute of limitations applicable to that offense has not run as of such date.

.

202.

Technical amendments

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 adding at the end the following: TITLE VIII-Protection of persons assisting the Government Sec. 801. Definitions Sec. 802. Procedures for covered civil actions..

(2)

Duration of availability

Amounts made available to the Commission under paragraph (1) shall remain available until the termination of the Commission. Lorraine MillerClerk.