[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 1114 Introduced in Senate (IS)]







110th CONGRESS
  1st Session
                                S. 1114

 To reiterate the exclusivity of the Foreign Intelligence Surveillance 
 Act of 1978 as the sole authority to permit the conduct of electronic 
  surveillance, to modernize surveillance authorities, and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 16, 2007

 Mrs. Feinstein (for herself and Mr. Specter) introduced the following 
    bill; which was read twice and referred to the Committee on the 
                               Judiciary

_______________________________________________________________________

                                 A BILL


 
 To reiterate the exclusivity of the Foreign Intelligence Surveillance 
 Act of 1978 as the sole authority to permit the conduct of electronic 
  surveillance, to modernize surveillance authorities, 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 ``Foreign 
Intelligence Surveillance Improvement and Enhancement 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. Definitions.
  TITLE I--CONSTRUCTION OF FOREIGN INTELLIGENCE SURVEILLANCE AUTHORITY

Sec. 101. Reiteration of chapters 119, 121, and 206 of title 18, United 
                            States Code, and Foreign Intelligence 
                            Surveillance Act of 1978 as exclusive means 
                            by which domestic electronic surveillance 
                            may be conducted.
Sec. 102. Specific authorization required for any repeal or 
                            modification of title I of the Foreign 
                            Intelligence Surveillance Act of 1978.
Sec. 103. Information for Congress on the terrorist surveillance 
                            program and similar programs.
Sec. 104. Supreme Court review of the Terrorist Surveillance Program.
 TITLE II--APPLICATIONS AND PROCEDURES FOR ELECTRONIC SURVEILLANCE FOR 
                     FOREIGN INTELLIGENCE PURPOSES

Sec. 201. Extension of period for applications for orders for emergency 
                            electronic surveillance.
Sec. 202. Additional authority for emergency electronic surveillance.
Sec. 203. Foreign Intelligence Surveillance Court matters.
Sec. 204. Document management system for applications for orders 
                            approving electronic surveillance.
Sec. 205. Additional personnel for preparation and consideration of 
                            applications for orders approving 
                            electronic surveillance.
Sec. 206. Training of Federal Bureau of Investigation and National 
                            Security Agency personnel in foreign 
                            intelligence surveillance matters.
Sec. 207. Enhancement of electronic surveillance authority in wartime.
TITLE III--CLARIFICATIONS TO THE FOREIGN INTELLIGENCE SURVEILLANCE ACT 
                                OF 1978

Sec. 301. Acquisition of foreign-foreign communications.
Sec. 302. Individualized FISA orders.
                        TITLE IV--OTHER MATTERS

Sec. 401. Authorization of appropriations.
Sec. 402. Effective date.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Congressional intelligence committees.--The term 
        ``congressional intelligence committees'' means--
                    (A) the Select Committee on Intelligence of the 
                Senate; and
                    (B) the Permanent Select Committee on Intelligence 
                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) United states person.--The term ``United States 
        person'' has the meaning given such term in section 101(i) of 
        the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
        1801(i)).

  TITLE I--CONSTRUCTION OF FOREIGN INTELLIGENCE SURVEILLANCE AUTHORITY

SEC. 101. REITERATION OF CHAPTERS 119, 121, AND 206 OF TITLE 18, UNITED 
              STATES CODE, AND FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 
              1978 AS EXCLUSIVE MEANS BY WHICH DOMESTIC ELECTRONIC 
              SURVEILLANCE MAY BE CONDUCTED.

    (a) Exclusive Means.--Notwithstanding any other provision of law, 
chapters 119, 121, and 206 of title 18, United States Code, and the 
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) 
shall be the exclusive means by which electronic surveillance (as that 
term is defined in section 101(f) of the Foreign Intelligence 
Surveillance Act of 1978 (50 U.S.C. 1801(f)) may be conducted.
    (b) Amendment to Foreign Intelligence Surveillance Act of 1978.--
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 title or chapter 
119, 121, or 206 of title 18, United States Code''.
    (c) Amendment to Title 18, United States Code.--Section 
2511(2)(a)(ii)(B) of title 18, United States Code, is amended by 
striking ``statutory requirements'' and inserting ``requirements under 
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et 
seq.), this chapter, or chapters 121 or 206 of this title''.

SEC. 102. SPECIFIC AUTHORIZATION REQUIRED FOR ANY REPEAL OR 
              MODIFICATION OF TITLE I OF THE FOREIGN INTELLIGENCE 
              SURVEILLANCE ACT OF 1978.

    (a) In General.--Title I of the Foreign Intelligence Surveillance 
Act of 1978 (50 U.S.C. 1801 et seq.) is amended by inserting after 
section 109 the following new section:

  ``specific authorization required for any repeal or modification of 
                                 title

    ``Sec. 109A.  No provision of law shall be construed to implicitly 
repeal or modify this title or any provision thereof, nor shall any 
provision of law be deemed to repeal or modify this title in any manner 
unless such provision of law, if enacted after the date of the 
enactment of the Foreign Intelligence Surveillance Improvement and 
Enhancement Act of 2007, expressly amends or otherwise specifically 
cites this title.''.
    (b) Clerical Amendment.--The table of contents for that Act is 
amended by inserting after the item relating to section 109 the 
following new item:

``Sec. 109A. Specific authorization required for any repeal or 
                            modification of title.''.

SEC. 103. 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 
brief and inform each member of the congressional intelligence 
committees on the following:
            (1) The Terrorist Surveillance Program of the National 
        Security Agency.
            (2) Any program which involves, whether in part or in 
        whole, the electronic surveillance of United States persons in 
        the United States for foreign intelligence 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. 104. SUPREME COURT REVIEW OF THE TERRORIST SURVEILLANCE PROGRAM.

    (a) In General.--Upon petition by the United States or any party to 
the underlying proceedings, the Supreme Court of the United States 
shall review a final decision on the merits concerning the 
constitutionality of the Terrorist Surveillance Program in at least one 
case that is pending in the courts of the United States on the date of 
enactment of this Act.
    (b) Expedited Consideration.--It shall be the duty of the Supreme 
Court of the United States to advance on the docket and to expedite to 
the greatest possible extent the disposition of any matter brought 
under subsection (a).
    (c) Definition.--In this section, the term ``Terrorist Surveillance 
Program'' means the program identified by the President on December 17, 
2005, to intercept international communications into and out of the 
United States of persons linked to al Qaeda or related terrorist 
organizations.

 TITLE II--APPLICATIONS AND PROCEDURES FOR ELECTRONIC SURVEILLANCE FOR 
                     FOREIGN INTELLIGENCE PURPOSES

SEC. 201. EXTENSION OF PERIOD FOR APPLICATIONS FOR ORDERS FOR EMERGENCY 
              ELECTRONIC SURVEILLANCE.

    Section 105(f) of the Foreign Intelligence Surveillance Act of 1978 
(50 U.S.C. 1805(f)) is amended by striking ``72 hours'' both places it 
appears and inserting ``168 hours''.

SEC. 202. ADDITIONAL AUTHORITY FOR EMERGENCY ELECTRONIC SURVEILLANCE.

    Section 105 of the Foreign Intelligence Surveillance Act of 1978 
(50 U.S.C. 1805) is amended--
            (1) by redesignating subsections (g), (h), (i), and (j) as 
        subsections (h), (i), (j), and (k), respectively; and
            (2) by inserting after subsection (f) the following new 
        subsection (g):
    ``(g)(1)(A) Notwithstanding any other provision of this title and 
subject to the provisions of this subsection, the Attorney General may, 
with the concurrence of the Director of National Intelligence, appoint 
appropriate supervisory or executive personnel within the Federal 
Bureau of Investigation and the National Security Agency to authorize 
electronic surveillance on a United States person in the United States 
on an emergency basis pursuant to the provisions of this subsection.
    ``(B) For purposes of this subsection, an intelligence agent or 
employee acting under the supervision of a supervisor or executive 
appointed under subparagraph (A) may conduct emergency electronic 
surveillance under this subsection if such supervisor or executive 
reasonably determines that--
            ``(i) an emergency situation exists with respect to the 
        employment of electronic surveillance to obtain foreign 
        intelligence information before an order authorizing such 
        surveillance can with due diligence be obtained; and
            ``(ii) the factual basis exists for the issuance of an 
        order approving such surveillance under this title.
    ``(2) The supervisors and executives appointed by the Attorney 
General under paragraph (1) may only be officials as follows:
            ``(A) In the case of the Federal Bureau of Investigation, 
        officials at or above the level of Special Agent in Charge.
            ``(B) In the case of the National Security Agency, 
        officials at or above the level of head of branch of the 
        National Security Agency.
    ``(3) A supervisor or executive responsible for the emergency 
employment of electronic surveillance under this subsection shall 
submit to the Attorney General a request for approval of the 
surveillance within 24 hours of the commencement of the surveillance. 
The request shall set forth the ground for the belief specified in 
paragraph (1), together with such other information as the Attorney 
General shall require.
    ``(4)(A) The review of a request under paragraph (3) shall be 
completed by the official concerned under that paragraph as soon as 
practicable, but not more than 72 hours after the commencement of the 
electronic surveillance concerned under paragraph (1).
    ``(B)(i) If the official concerned determines that the electronic 
surveillance does not meet the requirements of paragraph (1), the 
surveillance shall terminate immediately and may not be recommenced by 
any supervisor or executive appointed under paragraph (1), or any agent 
or employee acting under the supervision of such supervisor or 
executive, absent additional facts or changes in circumstances that 
lead a supervisor or executive appointed under paragraph (1) to 
reasonably believe that the requirements of paragraph (1) are 
satisfied.
    ``(ii) In the event of a determination under clause (i), the 
Attorney General shall not be required, under section 106(j), to notify 
any United States person of the fact that the electronic surveillance 
covered by such determination was conducted before the termination of 
the surveillance under that clause. However, the official making such 
determination shall notify the court established by section 103(a) of 
such determination, and shall also provide notice of such determination 
in the first report that is submitted under section 108(a) after such 
determination is made.
    ``(C) If the official concerned determines that the surveillance 
meets the requirements of subsection (f), the surveillance may 
continue, subject to the requirements of paragraph (5).
    ``(5)(A) An application in accordance with this title shall be made 
to a judge having jurisdiction under section 103 as soon as practicable 
but not more than 168 hours after the commencement of electronic 
surveillance under paragraph (1).
    ``(B) In the absence of a judicial order approving electronic 
surveillance commenced under paragraph (1), the surveillance shall 
terminate at the earlier of--
            ``(i) when the information sought is obtained;
            ``(ii) when the application under subparagraph (A) for an 
        order approving the surveillance is denied; or
            ``(iii) 168 hours after the commencement of the 
        surveillance, unless an application under subparagraph (A) is 
        pending, in which case the surveillance may continue for up to 
        an additional 24 hours while the judge has the application 
        under advisement.
    ``(C) If an application under subparagraph (A) for an order 
approving electronic surveillance commenced under paragraph (1) is 
denied, or in any other case in which the surveillance is terminated 
and no order approving the surveillance is issued by a court, the use 
of information obtained or evidence derived from the surveillance shall 
be governed by the provisions of subsection (f).
    ``(D) The denial of an application submitted under subparagraph (A) 
may be reviewed as provided in section 103.
    ``(6) Any person who engages in the emergency employment of 
electronic surveillance under paragraph (1) shall follow the 
minimization procedures otherwise required by this title for the 
issuance of a judicial order approving the conduct of electronic 
surveillance.
    ``(7) Not later than 30 days after appointing supervisors and 
executives under paragraph (1) to authorize the exercise of authority 
in that paragraph, the Attorney General, in consultation with the 
Director of National Intelligence, shall submit to the court 
established by section 103(a), the Select Committee on Intelligence of 
the Senate, and the Permanent Select Committee on Intelligence of the 
House of Representatives, and bring up to date as required, a report 
that--
            ``(A) identifies the number of supervisors and executives 
        who have been so appointed and the positions held by such 
        supervisors and executives; and
            ``(B) sets forth guidelines or other directives that 
        describe the responsibilities of such supervisors and 
        executives under this subsection.''.

SEC. 203. 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, by inserting ``at 
        least'' before ``seven of the United States judicial 
        circuits'';
            (3) by designating the second sentence as paragraph (4) and 
        indenting such paragraph, as so designated, two ems from the 
        left margin; and
            (4) by inserting after paragraph (1), as so designated, the 
        following new paragraph:
    ``(2) In addition to the judges designated under paragraph (1), the 
Chief Justice of the United States may designate as judges of the court 
established by paragraph (1) such judges appointed under Article III of 
the Constitution of the United States as the Chief Justice determines 
appropriate in order to provide for the prompt and timely consideration 
under section 105 of applications under section 104 for electronic 
surveillance under this title. Any judge designated under this 
paragraph shall be designated publicly.''.
    (b) Consideration of Emergency Applications.--Such section is 
further amended by inserting after paragraph (2), as added by 
subsection (a)(4) of this section, the following new paragraph:
    ``(3) A judge of the court shall make a determination to approve, 
deny, or seek modification of an application submitted pursuant to 
section subsection (f) or (g) of section 105 not later than 24 hours 
after the receipt of such application by the court.''.

SEC. 204. DOCUMENT MANAGEMENT SYSTEM FOR APPLICATIONS FOR ORDERS 
              APPROVING ELECTRONIC SURVEILLANCE.

    (a) System Required.--The Attorney General shall, in consultation 
with the Director of the Federal Bureau of Investigation, the Director 
of the National Security Agency, 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 section 104 of the Foreign Intelligence Surveillance 
Act of 1978 (50 U.S.C. 1804) before their submittal 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 section 104 or 105(g)(5) of the Foreign Intelligence 
        Surveillance Act of 1978 (50 U.S.C. 1804 and 1805(g)(5)); and
            (2) permit and facilitate the prompt transmittal of rulings 
        of the Foreign Intelligence Surveillance Court to personnel 
        submitting applications described in paragraph (1).

SEC. 205. ADDITIONAL PERSONNEL FOR PREPARATION AND CONSIDERATION OF 
              APPLICATIONS FOR ORDERS APPROVING ELECTRONIC 
              SURVEILLANCE.

    (a) Office of Intelligence Policy and Review.--
            (1) Additional personnel.--The Office of Intelligence 
        Policy and Review 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 section 104 of the Foreign 
        Intelligence Surveillance Act of 1978 (50 U.S.C. 1804) for 
        orders under section 105 of that Act (50 U.S.C. 1805) approving 
        electronic surveillance for foreign intelligence purposes.
            (2) Assignment.--The Attorney General shall assign 
        personnel authorized by paragraph (1) to and among appropriate 
        offices of the National Security Agency in order that such 
        personnel may directly assist personnel of the Agency in 
        preparing applications described in that paragraph.
    (b) Federal Bureau of Investigation.--
            (1) Additional legal and other personnel.--The National 
        Security Branch of the Federal Bureau of Investigation is 
        hereby authorized such additional legal and other personnel as 
        may be necessary to carry out the prompt and timely preparation 
        of applications under section 104 of the Foreign Intelligence 
        Surveillance Act of 1978 (50 U.S.C. 1804) for orders under 
        section 105 of that Act (50 U.S.C. 1805) approving electronic 
        surveillance for foreign intelligence purposes.
            (2) Assignment.--The Director of the Federal Bureau of 
        Investigation shall assign personnel authorized by paragraph 
        (1) to and among the field offices of the Federal Bureau of 
        Investigation in order that such personnel may directly assist 
        personnel of the Bureau in such field offices in preparing 
        applications described in that paragraph.
    (c) Additional Legal and Other Personnel for National Security 
Agency.--The National Security Agency is hereby authorized such 
additional legal and other personnel as may be necessary to carry out 
the prompt and timely preparation of applications under section 104 of 
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1804) for 
orders under section 105 of that Act (50 U.S.C. 1805) approving 
electronic surveillance for foreign intelligence purposes.
    (d) Additional Legal and Other Personnel for Foreign Intelligence 
Surveillance Court.--There is hereby authorized for the Foreign 
Intelligence Surveillance Court such additional staff personnel as may 
be necessary to facilitate the prompt and timely consideration by that 
Court of applications under section 104 of the Foreign Intelligence 
Surveillance Act of 1978 (50 U.S.C. 1804) for orders under section 105 
of that Act (50 U.S.C. 1805) 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.
    (e) Supplement Not Supplant.--The personnel authorized by this 
section are in addition to any other personnel authorized by law.

SEC. 206. TRAINING OF FEDERAL BUREAU OF INVESTIGATION AND NATIONAL 
              SECURITY AGENCY PERSONNEL IN FOREIGN INTELLIGENCE 
              SURVEILLANCE MATTERS.

    The Director of the Federal Bureau of Investigation and the 
Director of the National Security Agency shall each, in consultation 
with the Attorney General--
            (1) develop regulations to establish procedures for 
        conducting and seeking approval of electronic surveillance on 
        an emergency basis, and for preparing and properly submitting 
        and receiving applications and orders, under sections 104 and 
        105 of the Foreign Intelligence Surveillance Act of 1978 (50 
        U.S.C. 1804 and 1805); and
            (2) prescribe related training for the personnel of the 
        applicable agency.

SEC. 207. ENHANCEMENT OF ELECTRONIC SURVEILLANCE AUTHORITY IN WARTIME.

    Section 111 of the Foreign Intelligence Surveillance Act of 1978 
(50 U.S.C. 1811) is amended by striking ``fifteen calendar days 
following a declaration of war by the Congress.'' and inserting ``30 
calendar days following any of the following:
            ``(1) A declaration of war by the Congress.
            ``(2) An authorization for the use of military force within 
        the meaning of section 2(c)(2) of the War Powers Resolution (50 
        U.S.C. 1541(c)(2)).
            ``(3) A national emergency created by attack upon the 
        United States, its territories or possessions, or the Armed 
        Forces within the meaning of section 2(c)(3) of the War Powers 
        Resolution (50 U.S.C. 1541(c)(3)).''.

TITLE III--CLARIFICATIONS TO THE FOREIGN INTELLIGENCE SURVEILLANCE ACT 
                                OF 1978

SEC. 301. ACQUISITION OF FOREIGN-FOREIGN COMMUNICATIONS.

    (a) In General.--Notwithstanding any other provision of this Act or 
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et 
seq.), no court order shall be required for the acquisition through 
electronic surveillance of the contents of any communication between 
one person who is not located within the United States and another 
person who is not located within the United States for the purpose of 
collecting foreign intelligence information even if such communication 
passes through, or the surveillance device is located within, the 
United States.
    (b) Treatment of Intercepted Communications Involving Domestic 
Party.--If surveillance conducted as described in subsection (a) 
inadvertently collects a communication in which at least one party is 
within the United States, the contents of such communications shall be 
handled in accordance with the minimization procedures set forth in 
section 101(h)(4) of the Foreign Intelligence Surveillance Act of 1978 
(50 U.S.C. 1801(h)(4)).
    (c) Definitions.--In this section, the terms ``contents'', 
``electronic surveillance'', and ``foreign intelligence information'' 
have the meaning given such terms in section 101 of the Foreign 
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).

SEC. 302. INDIVIDUALIZED FISA ORDERS.

    Any order issued pursuant to section 105 of the Foreign 
Intelligence Surveillance Act of 1978 (50 U.S.C. 1805) authorizing 
electronic surveillance shall be supported by an individualized or 
particularized finding of probable cause to believe the target of the 
electronic surveillance is a foreign power or an agent of a foreign 
power.

                        TITLE IV--OTHER MATTERS

SEC. 401. AUTHORIZATION OF APPROPRIATIONS.

    There is authorized to be appropriated such sums as may be 
necessary to carry out this Act and the amendments made by this Act.

SEC. 402. EFFECTIVE DATE.

    Except as provided in section 103, this Act, and the amendments 
made by this Act, shall take effect on the date that is 30 days after 
the date of the enactment of this Act.
                                 <all>