[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3773 Placed on Calendar Senate (PCS)]






                                                       Calendar No. 517
110th CONGRESS
  1st Session
                                H. R. 3773


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            December 3, 2007

            Received; read twice and placed on the calendar

_______________________________________________________________________

                                 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.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Responsible 
Electronic Surveillance That is Overseen, Reviewed, and Effective Act 
of 2007'' or ``RESTORE Act of 2007''.
    (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Clarification of electronic surveillance of non-United States 
                            persons outside the United States.
Sec. 3. Additional authorization of acquisitions of communications of 
                            non-United States persons located outside 
                            the United States who may be communicating 
                            with persons inside the United States.
Sec. 4. Emergency authorization of acquisitions of communications of 
                            non-United States persons located outside 
                            the United States who may be communicating 
                            with persons inside the United States.
Sec. 5. Oversight of acquisitions of communications of non-United 
                            States persons located outside of the 
                            United States who may be communicating with 
                            persons inside the United States.
Sec. 6. Dissemination of communications of non-United States persons 
                            located outside of the United States who 
                            may be communicating with persons inside 
                            the United States.
Sec. 7. Foreign Intelligence Surveillance Court en banc.
Sec. 8. Foreign Intelligence Surveillance Court matters.
Sec. 9. Reiteration of FISA as the exclusive means by which electronic 
                            surveillance may be conducted for gathering 
                            foreign intelligence information.
Sec. 10. Enhancement of electronic surveillance authority in wartime 
                            and other collection.
Sec. 11. Audit of warrantless surveillance programs.
Sec. 12. Record-keeping system on acquisition of communications of 
                            United States persons.
Sec. 13. Authorization for increased resources relating to foreign 
                            intelligence surveillance.
Sec. 14. Document management system for applications for orders 
                            approving electronic surveillance.
Sec. 15. Training of intelligence community personnel in foreign 
                            intelligence collection matters.
Sec. 16. Information for Congress on the terrorist surveillance program 
                            and similar programs.
Sec. 17. Technical and conforming amendments.
Sec. 18. Sunset; transition procedures.
Sec. 19. Certification to communications service providers that 
                            acquisitions are authorized under FISA.
Sec. 20. Statute of limitations.
Sec. 21. No rights under the RESTORE Act for undocumented aliens.
Sec. 22. Surveillance to protect the United States.

SEC. 2. CLARIFICATION OF ELECTRONIC SURVEILLANCE OF NON-UNITED STATES 
              PERSONS OUTSIDE THE UNITED STATES.

    Section 105A of the Foreign Intelligence Surveillance Act of 1978 
(50 U.S.C. 1801 et seq.) is amended to read as follows:

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

    ``Sec. 105A.  (a) Foreign to Foreign Communications.--
            ``(1) In general.--Notwithstanding any other provision of 
        this Act, a court order is not required for electronic 
        surveillance directed at the acquisition of the contents of any 
        communication between persons that are not known to be United 
        States persons and are reasonably believed to be located 
        outside 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.
            ``(2) Treatment of inadvertent interceptions.--If 
        electronic surveillance referred to in paragraph (1) 
        inadvertently collects a communication in which at least one 
        party to the communication is located inside the United States 
        or is a United States person, the contents of such 
        communication shall be handled in accordance with minimization 
        procedures adopted by the Attorney General that require that no 
        contents of any communication to which a United States person 
        is a party shall be disclosed, disseminated, or used for any 
        purpose or retained for longer than 7 days unless a court order 
        under section 105 is obtained or unless the Attorney General 
        determines that the information indicates a threat of death or 
        serious bodily harm to any person.
    ``(b) Communications of Non-United States Persons Outside of the 
United States.--Notwithstanding any other provision of this Act other 
than subsection (a), electronic surveillance that is directed at the 
acquisition of the communications of a person that is reasonably 
believed to be located outside the United States and not a United 
States person for the purpose of collecting foreign intelligence 
information (as defined in paragraph (1) or (2)(A) of section 101(e)) 
by targeting that person shall be conducted pursuant to--
            ``(1) an order approved in accordance with section 105 or 
        105B; or
            ``(2) an emergency authorization in accordance with section 
        105 or 105C.''.

SEC. 3. ADDITIONAL AUTHORIZATION OF ACQUISITIONS OF COMMUNICATIONS OF 
              NON-UNITED STATES PERSONS LOCATED OUTSIDE THE UNITED 
              STATES WHO MAY BE COMMUNICATING WITH PERSONS INSIDE THE 
              UNITED STATES.

    Section 105B of the Foreign Intelligence Surveillance Act of 1978 
(50 U.S.C. 1801 et seq.) is amended to read as follows:

  ``additional authorization of acquisitions of communications of non-
  united states persons located outside the united states who may be 
          communicating with persons inside the united states

    ``Sec. 105B.  (a) In General.--Notwithstanding any other provision 
of this Act, the Director of National Intelligence and the Attorney 
General may jointly apply to a judge of the court established under 
section 103(a) for an ex parte order, or the extension of an order, 
authorizing for a period of up to one year the acquisition of 
communications of persons that are reasonably believed to be located 
outside the United States and not United States persons for the purpose 
of collecting foreign intelligence information (as defined in paragraph 
(1) or (2)(A) of section 101(e)) by targeting those persons.
    ``(b) Application Inclusions.--An application under subsection (a) 
shall include--
            ``(1) a certification by the Director of National 
        Intelligence and the Attorney General that--
                    ``(A) the targets of the acquisition of foreign 
                intelligence information under this section are persons 
                reasonably believed to be located outside the United 
                States who may be communicating with persons inside the 
                United States;
                    ``(B) the targets of the acquisition are reasonably 
                believed to be persons that are not United States 
                persons;
                    ``(C) the acquisition involves obtaining the 
                foreign intelligence information from, or with the 
                assistance of, a communications service provider or 
                custodian, or an officer, employee, or agent of such 
                service provider or custodian, who has authorized 
                access to the communications to be acquired, 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; and
                    ``(D) a significant purpose of the acquisition is 
                to obtain foreign intelligence information (as defined 
                in paragraph (1) or (2)(A) of section 101(e)); and
            ``(2) a description of--
                    ``(A) the procedures that will be used by the 
                Director of National Intelligence and the Attorney 
                General during the duration of the order to determine 
                that there is a reasonable belief that the persons that 
                are the targets of the acquisition are located outside 
                the United States and not United States persons;
                    ``(B) the nature of the information sought, 
                including the identity of any foreign power against 
                whom the acquisition will be directed;
                    ``(C) minimization procedures that meet the 
                definition of minimization procedures under section 
                101(h) to be used with respect to such acquisition; and
                    ``(D)(i) the guidelines that will be used to ensure 
                that an application is filed under section 104, if 
                otherwise required by this Act, when a significant 
                purpose of an acquisition is to acquire the 
                communications of a specific United States person 
                reasonably believed to be located in the United States; 
                and
                            ``(ii) the criteria for determining if such 
                        a significant purpose exists, which shall 
                        require consideration of whether--
                                    ``(I) the department or agency of 
                                the Federal Government conducting the 
                                acquisition has made an inquiry to 
                                another department or agency of the 
                                Federal Government to gather 
                                information on the specific United 
                                States person;
                                    ``(II) the department or agency of 
                                the Federal Government conducting the 
                                acquisition has provided information 
                                that identifies the specific United 
                                States person to another department or 
                                agency of the Federal Government;
                                    ``(III) the department or agency of 
                                the Federal Government conducting the 
                                acquisition determines that the 
                                specific United States person has been 
                                the subject of ongoing interest or 
                                repeated investigation by a department 
                                or agency of the Federal Government; 
                                and
                                    ``(IV) the specific United States 
                                person is a natural person.
    ``(c) Specific Place Not Required.--An application 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.
    ``(d) Review of Application; Appeals.--
            ``(1) Review of application.--Not later than 15 days after 
        a judge receives an application under subsection (a), the judge 
        shall review such application and shall approve the application 
        if the judge finds that--
                    ``(A) the proposed procedures referred to in 
                subsection (b)(2)(A) are reasonably designed to 
                determine whether the targets of the acquisition are 
                located outside the United States and not United States 
                persons;
                    ``(B) the proposed minimization procedures referred 
                to in subsection (b)(2)(C) meet the definition of 
                minimization procedures under section 101(h); and
                    ``(C)(i) the guidelines referred to in subsection 
                (b)(2)(D) are reasonably designed to ensure that an 
                application is filed under section 104, if otherwise 
                required by this Act, when a significant purpose of an 
                acquisition is to acquire the communications of a 
                specific United States person reasonably believed to be 
                located in the United States; and
                            ``(ii) the criteria for determining if such 
                        a significant purpose exists require 
                        consideration of whether--
                                    ``(I) the department or agency of 
                                the Federal Government conducting the 
                                acquisition has made an inquiry to 
                                another department or agency of the 
                                Federal Government to gather 
                                information on the specific United 
                                States person;
                                    ``(II) the department or agency of 
                                the Federal Government conducting the 
                                acquisition has provided information 
                                that identifies the specific United 
                                States person to another department or 
                                agency of the Federal Government;
                                    ``(III) the department or agency of 
                                the Federal Government conducting the 
                                acquisition determines that the 
                                specific United States person has been 
                                the subject of ongoing interest or 
                                repeated investigation by a department 
                                or agency of the Federal Government; 
                                and
                                    ``(IV) the specific United States 
                                person is a natural person.
            ``(2) Temporary order; appeals.--
                    ``(A) Temporary order.--A judge denying an 
                application under paragraph (1) may, at the application 
                of the United States, issue a temporary order to 
                authorize an acquisition under section 105B in 
                accordance with the application submitted under 
                subsection (a) during the pendency of any appeal of the 
                denial of such application.
                    ``(B) Appeals.--The United States may appeal the 
                denial of an application for an order under paragraph 
                (1) or a temporary order under subparagraph (A) in 
                accordance with section 103.
    ``(e) Order.--
            ``(1) In general.--A judge approving an application under 
        subsection (d) shall issue an order--
                    ``(A) authorizing the acquisition of the contents 
                of the communications as requested, or as modified by 
                the judge;
                    ``(B) requiring the communications service provider 
                or custodian, or officer, employee, or agent of such 
                service provider or custodian, who has authorized 
                access to the information, facilities, or technical 
                assistance necessary to accomplish the acquisition to 
                provide such information, facilities, or technical 
                assistance necessary to accomplish the acquisition and 
                to produce a minimum of interference with the services 
                that provider, custodian, officer, employee, or agent 
                is providing the target of the acquisition;
                    ``(C) requiring such communications service 
                provider, custodian, officer, employee, or agent, 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) directing the Federal Government to--
                            ``(i) compensate, at the prevailing rate, a 
                        person for providing information, facilities, 
                        or assistance pursuant to such order;
                            ``(ii) provide a copy of the portion of the 
                        order directing the person to comply with the 
                        order to such person; and
                            ``(iii) provide a certification stating 
                        that the acquisition is authorized under this 
                        section and that all requirements of this 
                        section have been met; and
                    ``(E) directing the applicant to follow--
                            ``(i) the procedures referred to in 
                        subsection (b)(2)(A) as proposed or as modified 
                        by the judge;
                            ``(ii) the minimization procedures referred 
                        to in subsection (b)(2)(C) as proposed or as 
                        modified by the judge; and
                            ``(iii) the guidelines referred to in 
                        subsection (b)(2)(D) as proposed or as modified 
                        by the judge.
            ``(2) Failure to comply.--If a person fails to comply with 
        an order issued under paragraph (1), the Attorney General may 
        invoke the aid of the court established under section 103(a) to 
        compel compliance with the order. 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 may be found.
            ``(3) Liability of order.--Notwithstanding any other law, 
        no cause of action shall lie in any court against any person 
        for providing any information, facilities, or assistance in 
        accordance with an order issued under this subsection.
            ``(4) Retention of order.--The Director of National 
        Intelligence and the court established under subsection 103(a) 
        shall retain an order issued under this section for a period of 
        not less than 10 years from the date on which such order is 
        issued.
            ``(5) Assessment of compliance with court order.--At or 
        before the end of the period of time for which an acquisition 
        is approved by an order or an extension under this section, the 
        court established under section 103(a) shall, not less 
        frequently than once each quarter, assess compliance with the 
        procedures and guidelines referred to in paragraph (1)(E) and 
        review the circumstances under which information concerning 
        United States persons was acquired, retained, or 
        disseminated.''.

SEC. 4. EMERGENCY AUTHORIZATION OF ACQUISITIONS OF COMMUNICATIONS OF 
              NON-UNITED STATES PERSONS LOCATED OUTSIDE THE UNITED 
              STATES WHO MAY BE COMMUNICATING WITH PERSONS INSIDE THE 
              UNITED STATES.

    Section 105C of the Foreign Intelligence Surveillance Act of 1978 
(50 U.S.C. 1801 et seq.) is amended to read as follows:

  ``emergency authorization of acquisitions of communications of non-
  united states persons located outside the united states who may be 
          communicating with persons inside the united states

    ``Sec. 105C.  (a) Application After Emergency Authorization.--As 
soon as is practicable, but not more than 7 days after the Director of 
National Intelligence and the Attorney General authorize an acquisition 
under this section, an application for an order authorizing the 
acquisition in accordance with section 105B shall be submitted to the 
judge referred to in subsection (b)(2) of this section for approval of 
the acquisition in accordance with section 105B.
    ``(b) Emergency Authorization.--Notwithstanding any other provision 
of this Act, the Director of National Intelligence and the Attorney 
General may jointly authorize the emergency acquisition of foreign 
intelligence information (as defined in paragraph (1) or (2)(A) of 
section 101(e)) for a period of not more than 45 days if--
            ``(1) the Director of National Intelligence and the 
        Attorney General jointly determine that--
                    ``(A) an emergency situation exists with respect to 
                an authorization for an acquisition under section 105B 
                before an order approving the acquisition under such 
                section can with due diligence be obtained;
                    ``(B) the targets of the acquisition of foreign 
                intelligence information under this section are persons 
                reasonably believed to be located outside the United 
                States who may be communicating with persons inside the 
                United States;
                    ``(C) the targets of the acquisition are reasonably 
                believed to be persons that are not United States 
                persons;
                    ``(D) there are procedures in place that will be 
                used by the Director of National Intelligence and the 
                Attorney General during the duration of the 
                authorization to determine if there is a reasonable 
                belief that the persons that are the targets of the 
                acquisition are located outside the United States and 
                not United States persons;
                    ``(E) the acquisition involves obtaining the 
                foreign intelligence information from, or with the 
                assistance of, a communications service provider or 
                custodian, or an officer, employee, or agent of such 
                service provider or custodian, who has authorized 
                access to the communications to be acquired, 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;
                    ``(F) a significant purpose of the acquisition is 
                to obtain foreign intelligence information (as defined 
                in paragraph (1) or (2)(A) of section 101(e));
                    ``(G) minimization procedures to be used with 
                respect to such acquisition activity meet the 
                definition of minimization procedures under section 
                101(h); and
                    ``(H)(i) there are guidelines that will be used to 
                ensure that an application is filed under section 104, 
                if otherwise required by this Act, when a significant 
                purpose of an acquisition is to acquire the 
                communications of a specific United States person 
                reasonably believed to be located in the United States; 
                and
                            ``(ii) the criteria for determining if such 
                        a significant purpose exists require 
                        consideration of whether--
                                    ``(I) the department or agency of 
                                the Federal Government conducting the 
                                acquisition has made an inquiry to 
                                another department or agency of the 
                                Federal Government to gather 
                                information on the specific United 
                                States person;
                                    ``(II) the department or agency of 
                                the Federal Government conducting the 
                                acquisition has provided information 
                                that identifies the specific United 
                                States person to another department or 
                                agency of the Federal Government;
                                    ``(III) the department or agency of 
                                the Federal Government conducting the 
                                acquisition determines that the 
                                specific United States person has been 
                                the subject of ongoing interest or 
                                repeated investigation by a department 
                                or agency of the Federal Government; 
                                and
                                    ``(IV) the specific United States 
                                person is a natural person.
            ``(2) the Director of National Intelligence and the 
        Attorney General, or their designees, inform a judge having 
        jurisdiction to approve an acquisition under section 105B at 
        the time of the authorization under this section that the 
        decision has been made to acquire foreign intelligence 
        information.
    ``(c) Information, Facilities, and Technical Assistance.--
            ``(1) Directive.--Pursuant to an authorization of an 
        acquisition under this section, the Attorney General may direct 
        a communications service provider, custodian, or an officer, 
        employee, or agent of such service provider or custodian, who 
        has the lawful authority to access the information, facilities, 
        or technical assistance necessary to accomplish such 
        acquisition to--
                    ``(A) furnish the Attorney General forthwith with 
                such information, facilities, or technical assistance 
                in a manner that will protect the secrecy of the 
                acquisition and produce a minimum of interference with 
                the services that provider, custodian, officer, 
                employee, or agent is providing the target of the 
                acquisition; 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.
            ``(2) Parameters; certifications.--The Attorney General 
        shall provide to any person directed to provide assistance 
        under paragraph (1) with--
                    ``(A) a document setting forth the parameters of 
                the directive;
                    ``(B) a certification stating that--
                            ``(i) the emergency authorization has been 
                        issued pursuant to this section;
                            ``(ii) all requirements of this section 
                        been met;
                            ``(iii) a judge has been informed of the 
                        emergency authorization in accordance with 
                        subsection (b)(2); and
                            ``(iv) an application will be submitted in 
                        accordance with subsection (a); and
                    ``(C) a certification that the recipient of the 
                directive shall be compensated, at the prevailing rate, 
                for providing information, facilities, or assistance 
                pursuant to such directive.''.

SEC. 5. OVERSIGHT OF ACQUISITIONS OF COMMUNICATIONS OF NON-UNITED 
              STATES PERSONS LOCATED OUTSIDE OF THE UNITED STATES WHO 
              MAY BE COMMUNICATING WITH PERSONS INSIDE THE UNITED 
              STATES.

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

  ``oversight of acquisitions of communications of non-united states 
 persons located outside of the united states who may be communicating 
                 with persons inside the united states

    ``Sec. 105D.  (a) Application; Procedures; Orders.--Not later than 
7 days after an application is submitted under section 105B(a) or an 
order is issued under section 105B(e), the Director of National 
Intelligence and the Attorney General shall submit to the appropriate 
committees of Congress--
            ``(1) in the case of an application--
                    ``(A) a copy of the application, including the 
                certification made under section 105B(b)(1); and
                    ``(B) a description of the primary purpose of the 
                acquisition for which the application is submitted; and
            ``(2) in the case of an order, a copy of the order, 
        including the procedures and guidelines referred to in section 
        105B(e)(1)(E).
    ``(b) Regular Audits.--
            ``(1) Audit.--Not later than 120 days after the date of the 
        enactment of this section, and every 120 days thereafter until 
        the expiration of all orders issued under section 105B, the 
        Inspector General of the Department of Justice shall complete 
        an audit on the implementation of and compliance with the 
        procedures and guidelines referred to in section 105B(e)(1)(E) 
        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) the results of such 
        audit, including, for each order authorizing the acquisition of 
        foreign intelligence under section 105B--
                    ``(A) the number of targets of an acquisition under 
                such order that were later determined to be located in 
                the United States;
                    ``(B) the number of persons located in the United 
                States whose communications have been acquired under 
                such order;
                    ``(C) the number and nature of reports disseminated 
                containing information on a United States person that 
                was collected under such order; and
                    ``(D) the number of applications submitted for 
                approval of electronic surveillance under section 104 
                for targets whose communications were acquired under 
                such order.
            ``(2) Report.--Not later than 30 days after the completion 
        of an audit under paragraph (1), the Attorney General shall 
        submit to the appropriate committees of Congress and the court 
        established under section 103(a) a report containing the 
        results of such audit.
    ``(c) Compliance Reports.--Not later than 60 days after the date of 
the enactment of this section, and every 120 days thereafter until the 
expiration of all orders issued under section 105B, the Director of 
National Intelligence and the Attorney General shall submit to the 
appropriate committees of Congress and the court established under 
section 103(a) a report concerning acquisitions under section 105B 
during the previous period. Each report submitted under this section 
shall include a description of any incidents of non-compliance with an 
order issued under section 105B(e), including incidents of non-
compliance by--
            ``(1) an element of the intelligence community with 
        procedures referred to in section 105B(e)(1)(E)(i);
            ``(2) an element of the intelligence community with 
        minimization procedures referred to in section 
        105B(e)(1)(E)(ii);
            ``(3) an element of the intelligence community with 
        guidelines referred to in section 105B(e)(1)(E)(iii); and
            ``(4) a person directed to provide information, facilities, 
        or technical assistance under such order.
    ``(d) Report on Emergency Authority.--The Director of National 
Intelligence and the Attorney General shall annually submit to the 
appropriate committees of Congress a report containing the number of 
emergency authorizations of acquisitions under section 105C and a 
description of any incidents of non-compliance with an emergency 
authorization under such section.
    ``(e) Appropriate Committees of Congress Defined.--In this section, 
the term `appropriate committees of Congress' means--
            ``(1) the Permanent Select Committee on Intelligence of the 
        House of Representatives;
            ``(2) the Select Committee on Intelligence of the Senate; 
        and
            ``(3) the Committees on the Judiciary of the House of 
        Representatives and the Senate.''.

SEC. 6. DISSEMINATION OF COMMUNICATIONS OF NON-UNITED STATES PERSONS 
              LOCATED OUTSIDE OF THE UNITED STATES WHO MAY BE 
              COMMUNICATING WITH PERSONS INSIDE THE UNITED STATES.

    The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 
et seq.) is amended by inserting after section 105D (as added by 
section 5) the following new section:

``dissemination of communications of non-united states persons located 
  outside of the united states who may be communicating with persons 
                        inside the united states

    ``Sec. 105E.  The contents of communications collected under 
section 105B or section 105C, and intelligence reports based on such 
contents, shall not be disclosed or disseminated with information that 
identifies a United States person unless an officer or employee of the 
Federal Government whose rate of basic pay is not less than the minimum 
rate payable under section 5382 of title 5, United States Code 
(relating to rates of pay for the Senior Executive Service) determines 
that the identity of the United States person is necessary to--
            ``(1) understand the foreign intelligence collected under 
        section 105B or 105C or assess the importance of such 
        intelligence; and
            ``(2) protect the national security of the United States, 
        the citizens, employees, or officers of the United States, or 
        the members of the United States Armed Forces.''.

SEC. 7. FOREIGN INTELLIGENCE SURVEILLANCE COURT EN BANC.

    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) In any case where the court established under subsection (a) 
or a judge of such court is required to review a matter under this Act, 
the court may, at the discretion of the court, sit en banc to review 
such matter and issue any orders related to such matter.''.

SEC. 8. FOREIGN INTELLIGENCE SURVEILLANCE COURT MATTERS.

    (a) Authority for Additional Judges.--Section 103(a) of the Foreign 
Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a)) is amended--
            (1) by inserting ``(1)'' after ``(a)'';
            (2) in paragraph (1) (as so designated)--
                    (A) by striking ``11'' and inserting ``15''; and
                    (B) by inserting ``at least'' before ``seven of the 
                United States judicial circuits''; and
            (3) by designating the second sentence as paragraph (3) and 
        indenting such paragraph, as so designated, two ems from the 
        left margin.
    (b) Consideration of Emergency Applications.--Such section is 
further amended by inserting after paragraph (1) (as designated by 
subsection (a)(1)) the following new paragraph:
    ``(2) A judge of the court shall make a determination to approve, 
deny, or modify an application submitted pursuant to section 105(f), 
section 304(e), or section 403 not later than 24 hours after the 
receipt of such application by the court.''.

SEC. 9. REITERATION OF FISA AS THE EXCLUSIVE MEANS BY WHICH ELECTRONIC 
              SURVEILLANCE MAY BE CONDUCTED FOR GATHERING FOREIGN 
              INTELLIGENCE INFORMATION.

    (a) Exclusive Means.--Notwithstanding any other provision of law, 
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et 
seq.) shall be the exclusive means by which electronic surveillance may 
be conducted for the purpose of gathering foreign intelligence 
information.
    (b) Specific Authorization Required for Exception.--Subsection (a) 
shall apply until specific statutory authorization for electronic 
surveillance, other than as an amendment to the Foreign Intelligence 
Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), is enacted. Such 
specific statutory authorization shall be the only exception to 
subsection (a).

SEC. 10. ENHANCEMENT OF ELECTRONIC SURVEILLANCE AUTHORITY IN WARTIME 
              AND OTHER COLLECTION.

    Sections 111, 309, and 404 of the Foreign Intelligence Surveillance 
Act of 1978 (50 U.S.C. 1811, 1829, and 1844) are amended by striking 
``Congress'' and inserting ``Congress or an authorization for the use 
of military force described in section 2(c)(2) of the War Powers 
Resolution (50 U.S.C. 1541(c)(2)) if such authorization contains a 
specific authorization for foreign intelligence collection under this 
section, or if the Congress is unable to convene because of an attack 
upon the United States.''.

SEC. 11. AUDIT OF WARRANTLESS SURVEILLANCE PROGRAMS.

    (a) Audit.--Not later than 180 days after the date of the enactment 
of this Act, the Inspector General of the Department of Justice shall 
complete an audit of all programs of the Federal Government involving 
the acquisition of communications conducted without a court order on or 
after September 11, 2001, including the Terrorist Surveillance Program 
referred to by the President in a radio address on December 17, 2005. 
Such audit shall include acquiring all documents relevant to such 
programs, including memoranda concerning the legal authority of a 
program, authorizations of a program, certifications to 
telecommunications carriers, and court orders.
    (b) Report.--
            (1) In general.--Not later than 30 days after the 
        completion of the audit under subsection (a), the Inspector 
        General shall submit to the Permanent Select Committee on 
        Intelligence and the Committee on the Judiciary of the House of 
        Representatives and the Select Committee on Intelligence and 
        the Committee on the Judiciary of the Senate a report 
        containing the results of such audit, including all documents 
        acquired pursuant to conducting such audit.
            (2) Form.--The report under paragraph (1) shall be 
        submitted in unclassified form, but may include a classified 
        annex.
    (c) Expedited Security Clearance.--The Director of National 
Intelligence shall ensure that the process for the investigation and 
adjudication of an application by the Inspector General or the 
appropriate staff of the Office of the Inspector General of the 
Department of Justice for a security clearance necessary for the 
conduct of the audit under subsection (a) is conducted as expeditiously 
as possible.

SEC. 12. RECORD-KEEPING SYSTEM ON ACQUISITION OF COMMUNICATIONS OF 
              UNITED STATES PERSONS.

    (a) Record-Keeping System.--The Director of National Intelligence 
and the Attorney General shall jointly develop and maintain a record-
keeping system that will keep track of--
            (1) the instances where the identity of a United States 
        person whose communications were acquired was disclosed by an 
        element of the intelligence community (as defined in section 
        3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)) 
        that collected the communications to other departments or 
        agencies of the United States; and
            (2) the departments and agencies of the Federal Government 
        and persons to whom such identity information was disclosed.
    (b) Report.--The Director of National Intelligence and the Attorney 
General shall annually submit to the Permanent Select Committee on 
Intelligence and the Committee on the Judiciary of the House of 
Representatives and the Select Committee on Intelligence and the 
Committee on the Judiciary of the Senate a report on the record-keeping 
system created under subsection (a), including the number of instances 
referred to in paragraph (1).

SEC. 13. AUTHORIZATION FOR INCREASED RESOURCES RELATING TO FOREIGN 
              INTELLIGENCE SURVEILLANCE.

    (a) In General.--There are authorized to be appropriated to the 
Department of Justice, for the activities of the Office of the 
Inspector General and the appropriate elements of the National Security 
Division, and to the National Security Agency such sums as may be 
necessary to meet the personnel and information technology demands to 
ensure the timely and efficient processing of--
            (1) applications and other submissions to the court 
        established under section 103(a) of the Foreign Intelligence 
        Surveillance Act of 1978 (50 U.S.C. 1803(a));
            (2) the audit and reporting requirements under--
                    (A) section 105D of such Act; and
                    (B) section 10; and
            (3) the record-keeping system and reporting requirements 
        under section 11.
    (b) Additional Personnel for Preparation and Consideration of 
Applications for Orders Approving Electronic Surveillance and Physical 
Search.--
            (1) National security division of the department of 
        justice.--
                    (A) Additional personnel.--The National Security 
                Division of the Department of Justice is hereby 
                authorized such additional personnel as may be 
                necessary to carry out the prompt and timely 
                preparation, modification, and review of applications 
                under Foreign Intelligence Surveillance Act of 1978 for 
                orders under that Act for foreign intelligence 
                purposes.
                    (B) Assignment.--The Attorney General shall assign 
                personnel authorized by paragraph (1) to and among 
                appropriate offices of the intelligence community (as 
                defined in section 3(4) of the National Security Act of 
                1947 (50 U.S.C. 401a(4))) in order that such personnel 
                may directly assist personnel of the Intelligence 
                Community in preparing applications described in that 
                paragraph and conduct prompt and effective oversight of 
                the activities of such agencies under Foreign 
                Intelligence Surveillance Court orders.
            (2) Director of national intelligence.--
                    (A) Additional legal and other personnel.--The 
                Director of National Intelligence is hereby authorized 
                such additional legal and other personnel as may be 
                necessary to carry out the prompt and timely 
                preparation of applications under the Foreign 
                Intelligence Surveillance Act of 1978 for orders under 
                that Act approving electronic surveillance for foreign 
                intelligence purposes.
                    (B) Assignment.--The Director of National 
                Intelligence shall assign personnel authorized by 
                paragraph (1) to and among the intelligence community 
                (as defined in section 3(4) of the National Security 
                Act of 1947 (50 U.S.C. 401a(4))), including the field 
                offices of the Federal Bureau of Investigation, in 
                order that such personnel may directly assist personnel 
                of the intelligence community in preparing applications 
                described in that paragraph.
            (3) Additional legal and other personnel for foreign 
        intelligence surveillance court.--There is hereby authorized 
        for the court established under section 103(a) of the Foreign 
        Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a)) such 
        additional staff personnel as may be necessary to facilitate 
        the prompt and timely consideration by that court of 
        applications under such Act for orders under such Act approving 
        electronic surveillance for foreign intelligence purposes. 
        Personnel authorized by this paragraph shall perform such 
        duties relating to the consideration of such applications as 
        that court shall direct.
            (4) Supplement not supplant.--The personnel authorized by 
        this section are in addition to any other personnel authorized 
        by law.

SEC. 14. DOCUMENT MANAGEMENT SYSTEM FOR APPLICATIONS FOR ORDERS 
              APPROVING ELECTRONIC SURVEILLANCE.

    (a) System Required.--The Attorney General shall, in consultation 
with the Director of National Intelligence and the Foreign Intelligence 
Surveillance Court, develop and implement a secure, classified document 
management system that permits the prompt preparation, modification, 
and review by appropriate personnel of the Department of Justice, the 
Federal Bureau of Investigation, the National Security Agency, and 
other applicable elements of the United States Government of 
applications under the Foreign Intelligence Surveillance Act of 1978 
(50 U.S.C. 1804) before their submission to the Foreign Intelligence 
Surveillance Court.
    (b) Scope of System.--The document management system required by 
subsection (a) shall--
            (1) permit and facilitate the prompt submittal of 
        applications to the Foreign Intelligence Surveillance Court 
        under the Foreign Intelligence Surveillance Act of 1978; and
            (2) permit and facilitate the prompt transmittal of rulings 
        of the Foreign Intelligence Surveillance Court to personnel 
        submitting applications described in paragraph (1), and provide 
        for the secure electronic storage and retrieval of all such 
        applications and related matters with the court and for their 
        secure transmission to the National Archives and Records 
        Administration.

SEC. 15. TRAINING OF INTELLIGENCE COMMUNITY PERSONNEL IN FOREIGN 
              INTELLIGENCE COLLECTION MATTERS.

    The Director of National Intelligence shall, in consultation with 
the Attorney General--
            (1) develop regulations to establish procedures for 
        conducting and seeking approval of electronic surveillance, 
        physical search, and the installation and use of pen registers 
        and trap and trace devices on an emergency basis, and for 
        preparing and properly submitting and receiving applications 
        and orders under the Foreign Intelligence Surveillance Act of 
        1978; and
            (2) prescribe related training on the Foreign Intelligence 
        Surveillance Act of 1978 and related legal matters for the 
        personnel of the applicable agencies of the intelligence 
        community (as defined in section 3(4) of the National Security 
        Act of 1947 (50 U.S.C. 401a(4))).

SEC. 16. INFORMATION FOR CONGRESS ON THE TERRORIST SURVEILLANCE PROGRAM 
              AND SIMILAR PROGRAMS.

    As soon as practicable after the date of the enactment of this Act, 
but not later than seven days after such date, the President shall 
fully inform each member of the Permanent Select Committee on 
Intelligence of the House of Representatives and the Select Committee 
on Intelligence of the Senate on the following:
            (1) The Terrorist Surveillance Program of the National 
        Security Agency.
            (2) Any program in existence from September 11, 2001, until 
        the effective date of this Act that involves, whether in part 
        or in whole, the electronic surveillance of United States 
        persons in the United States for foreign intelligence or other 
        purposes, and which is conducted by any department, agency, or 
        other element of the United States Government, or by any entity 
        at the direction of a department, agency, or other element of 
        the United States Government, without fully complying with the 
        procedures set forth in the Foreign Intelligence Surveillance 
        Act of 1978 (50 U.S.C. 1801 et seq.) or chapter 119, 121, or 
        206 of title 18, United States Code.

SEC. 17. TECHNICAL AND CONFORMING AMENDMENTS.

    (a) 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 striking the items relating to sections 105A, 105B, 
and 105C and inserting the following new items:

``Sec. 105A. Clarification of electronic surveillance of non-United 
                            States persons outside the United States.
``Sec. 105B. Additional authorization of acquisitions of communications 
                            of non-United States persons located 
                            outside the United States who may be 
                            communicating with persons inside the 
                            United States.
``Sec. 105C. Emergency authorization of acquisitions of communications 
                            of non-United States persons located 
                            outside the United States who may be 
                            communicating with persons inside the 
                            United States.
``Sec. 105D. Oversight of acquisitions of communications of non-United 
                            States persons located outside of the 
                            United States who may be communicating with 
                            persons inside the United States.
``Sec. 105E. Dissemination of communications of non-United States 
                            persons located outside of the United 
                            States who may be communicating with 
                            persons inside the United States.''.
    (b) Section 103(e) of FISA.--Section 103(e) of the Foreign 
Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(e)) is amended--
            (1) in paragraph (1), by striking ``105B(h) or''; and
            (2) in paragraph (2), by striking ``105B(h) or''.
    (c) Repeal of Certain Provisions of the Protect America Act of 
2007.--Sections 4 and 6 of the Protect America Act of 2007 (Public Law 
110-55) are hereby repealed.

SEC. 18. SUNSET; TRANSITION PROCEDURES.

    (a) Sunset of New Provisions.--
            (1) In general.--Except as provided in paragraph (2), 
        effective on December 31, 2009--
                    (A) sections 105A, 105B, 105C, and 105D of the 
                Foreign Intelligence Surveillance Act of 1978 (50 
                U.S.C. 1801 et seq.) are hereby repealed; and
                    (B) the table of contents in the first section of 
                such Act is amended by striking the items relating to 
                sections 105A, 105B, 105C, and 105D.
            (2) Acquisitions authorized prior to sunset.--Any 
        authorization or order issued under section 105B of the Foreign 
        Intelligence Surveillance Act of 1978, as amended by this Act, 
        in effect on December 31, 2009, shall continue in effect until 
        the date of the expiration of such authorization or order.
    (b) Acquisitions Authorized Prior to Enactment.--
            (1) Effect.--Notwithstanding the amendments made by this 
        Act, an authorization of the acquisition of foreign 
        intelligence information under section 105B of the Foreign 
        Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) 
        made before the date of the enactment of this Act shall remain 
        in effect until the date of the expiration of such 
        authorization or the date that is 180 days after such date of 
        enactment, whichever is earlier.
            (2) Report.--Not later than 30 days after the date of the 
        expiration of all authorizations of acquisition of foreign 
        intelligence information under section 105B of the Foreign 
        Intelligence Surveillance Act of 1978 (as added by Public Law 
        110-55) made before the date of the enactment of this Act in 
        accordance with paragraph (1), the Director of National 
        Intelligence and the Attorney General shall submit to the 
        Permanent Select Committee on Intelligence and the Committee on 
        the Judiciary of the House of Representatives and the Select 
        Committee on Intelligence and the Committee on the Judiciary of 
        the Senate a report on such authorizations, including--
                    (A) the number of targets of an acquisition under 
                section 105B of such Act (as in effect on the day 
                before the date of the enactment of this Act) that were 
                later determined to be located in the United States;
                    (B) the number of persons located in the United 
                States whose communications have been acquired under 
                such section;
                    (C) the number of reports disseminated containing 
                information on a United States person that was 
                collected under such section;
                    (D) the number of applications submitted for 
                approval of electronic surveillance under section 104 
                of such Act based upon information collected pursuant 
                to an acquisition authorized under section 105B of such 
                Act (as in effect on the day before the date of the 
                enactment of this Act); and
                    (E) a description of any incidents of non-
                compliance with an authorization under such section, 
                including incidents of non-compliance by--
                            (i) an element of the intelligence 
                        community with procedures referred to in 
                        subsection (a)(1) of such section;
                            (ii) an element of the intelligence 
                        community with minimization procedures referred 
                        to in subsection (a)(5) of such section; and
                            (iii) a person directed to provide 
                        information, facilities, or technical 
                        assistance under subsection (e) of such 
                        section.
            (3) Intelligence community defined.--In this subsection, 
        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)).

SEC. 19. CERTIFICATION TO COMMUNICATIONS SERVICE PROVIDERS THAT 
              ACQUISITIONS ARE AUTHORIZED UNDER FISA.

    (a) Authorization Under Section 102.--Section 102(a) of the Foreign 
Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)) is amended by 
striking ``furnishing such aid'' and inserting ``furnishing such aid 
and shall provide such carrier with a certification stating that the 
electronic surveillance is authorized under this section and that all 
requirements of this section have been met''.
    (b) Authorization Under Section 105.--Section 105(c)(2) of such Act 
(50 U.S.C. 1805(c)(2)) is amended--
            (1) in subparagraph (C), by striking ``; and'' and 
        inserting ``;'';
            (2) in subparagraph (D), by striking ``aid.'' and inserting 
        ``aid; and''; and
            (3) by adding at the end the following new subparagraph:
                    ``(E) that the applicant provide such carrier, 
                landlord, custodian, or other person with a 
                certification stating that the electronic surveillance 
                is authorized under this section and that all 
                requirements of this section have been met.''.

SEC. 20. 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.

SEC. 21. NO RIGHTS UNDER THE RESTORE ACT FOR UNDOCUMENTED ALIENS.

    This Act and the amendments made by this Act shall not be construed 
to prohibit surveillance of, or grant any rights to, an alien not 
permitted to be in or remain in the United States.

SEC. 22. SURVEILLANCE TO PROTECT THE UNITED STATES.

    This Act and the amendments made by this Act shall not be construed 
to prohibit the intelligence community (as defined in section 3(4) of 
the National Security Act of 1947 (50 U.S.C. 401a(4))) from conducting 
lawful surveillance that is necessary to--
            (1) prevent Osama Bin Laden, al Qaeda, or any other 
        terrorist or terrorist organization from attacking the United 
        States, any United States person, or any ally of the United 
        States;
            (2) ensure the safety and security of members of the United 
        States Armed Forces or any other officer or employee of the 
        Federal Government involved in protecting the national security 
        of the United States; or
            (3) protect the United States, any United States person, or 
        any ally of the United States from threats posed by weapons of 
        mass destruction or other threats to national security.

            Passed the House of Representatives November 15, 2007.

            Attest:

                                            LORRAINE C. MILLER,

                                                                 Clerk.
                                                       Calendar No. 517

110th CONGRESS

  1st Session

                               H. R. 3773

_______________________________________________________________________

                                 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.

_______________________________________________________________________

                            December 3, 2007

            Received; read twice and placed on the calendar