110 HR 6304 EH: FISA Amendments Act of 2008 U.S. House of Representatives 0 text/xml EN Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.

I 110th CONGRESS 2d Session H. R. 6304 IN THE HOUSE OF REPRESENTATIVES 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.

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. Weapons of mass destruction. Title II—Protections for electronic communication service providers Sec. 201. Procedures for implementing statutory defenses under the Foreign Intelligence Surveillance Act of 1978. Sec. 202. Technical amendments. Title III—Review of previous actions Sec. 301. Review of previous actions. Title IV—Other provisions Sec. 401. Severability. Sec. 402. Effective date. Sec. 403. Repeals. Sec. 404. Transition procedures.

705.

Joint applications and concurrent authorizations

(a)

Joint applications and orders

If an acquisition targeting a United States person under section 703 or 704 is proposed to be conducted both inside and outside the United States, a judge having jurisdiction under section 703(a)(1) or 704(a)(1) may issue simultaneously, upon the request of the Government in a joint application complying with the requirements of sections 703(b) and 704(b), orders under sections 703(c) and 704(c), as appropriate. (b)

Concurrent authorization

If an order authorizing electronic surveillance or physical search has been obtained under section 105 or 304, the Attorney General may authorize, for the effective period of that order, without an order under section 703 or 704, the targeting of that United States person for the purpose of acquiring foreign intelligence information while such person is reasonably believed to be located outside the United States.

706.

Use of information acquired under title VII

(a)

Information acquired under section 702

Information acquired from an acquisition conducted under section 702 shall be deemed to be information acquired from an electronic surveillance pursuant to title I for purposes of section 106, except for the purposes of subsection (j) of such section. (b)

Information acquired under section 703

Information acquired from an acquisition conducted under section 703 shall be deemed to be information acquired from an electronic surveillance pursuant to title I for purposes of section 106.

707.

Congressional oversight

(a)

Semiannual report

Not less frequently than once every 6 months, the Attorney General shall fully inform, in a manner consistent with national security, the congressional intelligence committees and the Committees on the Judiciary of the Senate and the House of Representatives, consistent with the Rules of the House of Representatives, the Standing Rules of the Senate, and Senate Resolution 400 of the 94th Congress or any successor Senate resolution, concerning the implementation of this title. (b)

Content

Each report under subsection (a) shall include— (1)with respect to section 702— (A)any certifications submitted in accordance with section 702(g) during the reporting period; (B)with respect to each determination under section 702(c)(2), the reasons for exercising the authority under such section; (C)any directives issued under section 702(h) during the reporting period; (D)a description of the judicial review during the reporting period of such certifications and targeting and minimization procedures adopted in accordance with subsections (d) and (e) of section 702 and utilized with respect to an acquisition under such section, including a copy of an order or pleading in connection with such review that contains a significant legal interpretation of the provisions of section 702; (E)any actions taken to challenge or enforce a directive under paragraph (4) or (5) of section 702(h); (F)any compliance reviews conducted by the Attorney General or the Director of National Intelligence of acquisitions authorized under section 702(a); (G)a description of any incidents of noncompliance— (i)with a directive issued by the Attorney General and the Director of National Intelligence under section 702(h), including incidents of noncompliance by a specified person to whom the Attorney General and Director of National Intelligence issued a directive under section 702(h); and (ii)by an element of the intelligence community with procedures and guidelines adopted in accordance with subsections (d), (e), and (f) of section 702; and (H)any procedures implementing section 702; (2)with respect to section 703— (A)the total number of applications made for orders under section 703(b); (B)the total number of such orders— (i)granted; (ii)modified; and (iii)denied; and (C)the total number of emergency acquisitions authorized by the Attorney General under section 703(d) and the total number of subsequent orders approving or denying such acquisitions; and (3)with respect to section 704— (A)the total number of applications made for orders under section 704(b); (B)the total number of such orders— (i)granted; (ii)modified; and (iii)denied; and (C)the total number of emergency acquisitions authorized by the Attorney General under section 704(d) and the total number of subsequent orders approving or denying such applications.

708.

Savings provision

Nothing in this title shall be construed to limit the authority of the Government to seek an order or authorization under, or otherwise engage in any activity that is authorized under, any other title of this Act.

. (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 targeting 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 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 each 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 under section 103(a). (2)

Foreign intelligence surveillance court of review

The term Foreign Intelligence Surveillance Court of Review means the court established under 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 (6), as redesignated by subparagraph (B) of this paragraph, in the matter preceding subparagraph (A)— (i)by striking Affairs or and inserting Affairs,; and (ii)by striking Senate— and inserting Senate, or the Deputy Director of the Federal Bureau of Investigation, if designated by the President as a certifying official—; (E)in paragraph (7), as redesignated by subparagraph (B) of this paragraph, by striking statement of and inserting summary statement of; (F)in paragraph (8), as redesignated by subparagraph (B) of this paragraph, by adding and at the end; and (G)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

(a)

In general

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). . (b)

Conforming amendment

Section 108(a)(2)(C) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1808(a)(2)(C)) is amended by striking 105(f) and inserting 105(e);

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; (D)in paragraph (3)(C), as redesignated by subparagraph (B) of this paragraph, by inserting or is about to be before owned; and (E)in paragraph (6), as redesignated by subparagraph (B) of this paragraph, in the matter preceding subparagraph (A)— (i)by striking Affairs or and inserting Affairs,; and (ii)by striking Senate— and inserting Senate, or the Deputy Director of the Federal Bureau of Investigation, if designated by the President as a certifying official—; 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); (B)by redesignating paragraphs (2) through (5) as paragraphs (1) through (4), respectively; and (C)in paragraph (2)(B), as redesignated by subparagraph (B) of this paragraph, by inserting or is about to be before owned; 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)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. (6)The Attorney General shall assess compliance with the requirements of paragraph (5). . (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 may, 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 702(h), 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 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 under 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.

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; (B)in subparagraph (C), by striking or at the end; and (C)by adding at the end the following new subparagraphs: (D)engages in the international proliferation of weapons of mass destruction, or activities in preparation therefor; or (E)engages in the international proliferation of weapons of mass destruction, or activities in preparation therefor for or on behalf of a foreign power; 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 designed, intended, or has the capability to cause a mass casualty incident; (2)any weapon that is designed, intended, or has the capability 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 to cause death, illness, or serious bodily injury to a significant number of persons; or (4)any weapon that is designed, intended, or has the capability to release 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 amendments

The Foreign Intelligence Surveillance Act of 1978 is further amended— (1)in paragraph (2) of section 105(d) (50 U.S.C. 1805(d)), as redesignated by section 105(a)(5) of this Act, by striking section 101(a) (5) or (6) and inserting paragraph (5), (6), or (7) of section 101(a); (2)in section 301(1) (50 U.S.C. 1821(1)), by inserting “weapon of mass destruction,” after person,; and (3)in section 304(d)(2) (50 U.S.C. 1824(d)(2)), by striking section 101(a) (5) or (6) and inserting paragraph (5), (6), or (7) of section 101(a).

.

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.), as amended by section 101(b), is further amended by adding at the end the following: Title VIII—Protection of persons assisting the Government Sec. 801. Definitions. Sec. 802. Procedures for implementing statutory defenses. Sec. 803. Preemption. Sec. 804. Reporting. .

Passed the House of Representatives June 20, 2008.Lorraine C. Miller,Clerk.