[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 2440 Placed on Calendar Senate (PCS)]






                                                       Calendar No. 529
110th CONGRESS
  1st Session
                                S. 2440

    To amend the Foreign Intelligence Surveillance Act of 1978, to 
  modernize and streamline the provisions of that Act, and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           December 10, 2007

 Mr. Reid introduced the following bill; which was read the first time

                           December 11, 2007

            Read the second time and placed on the calendar

_______________________________________________________________________

                                 A BILL


 
    To amend the Foreign Intelligence Surveillance Act of 1978, to 
  modernize and streamline the provisions of that Act, 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 ``FISA Improvement 
Act of 2007''.
    (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. Targeting the communications of certain persons outside the 
                            United States.
Sec. 102. Statement of exclusive means by which electronic surveillance 
                            and interception of domestic 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. Technical and conforming amendments.
                       TITLE II--OTHER PROVISIONS

Sec. 201. Severability.
Sec. 202. Effective date; repeal; transition procedures.

               TITLE I--FOREIGN INTELLIGENCE SURVEILLANCE

SEC. 101. TARGETING THE COMMUNICATIONS OF CERTAIN PERSONS OUTSIDE THE 
              UNITED STATES.

    (a) In General.--The Foreign Intelligence Surveillance Act of 1978 
(50 U.S.C. 1801 et seq.) is amended--
            (1) by striking title VII; and
            (2) by adding after title VI the following new title:

  ``TITLE VII--ADDITIONAL PROCEDURES FOR TARGETING COMMUNICATIONS OF 
               CERTAIN PERSONS OUTSIDE THE UNITED STATES

``SEC. 701. LIMITATION ON DEFINITION OF ELECTRONIC SURVEILLANCE.

    ``Nothing in the definition of electronic surveillance under 
section 101(f) shall be construed to encompass surveillance that is 
targeted in accordance with this title at a person reasonably believed 
to be located outside the United States.

``SEC. 702. DEFINITIONS.

    ``(a) In General.--The terms `agent of a foreign power', `Attorney 
General', `contents', `electronic surveillance', `foreign intelligence 
information', `foreign power', `minimization procedures', `person', 
`United States', and `United States person' shall have the meanings 
given such terms in section 101, except as specifically provided in 
this title.
    ``(b) Additional Definitions.--
            ``(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; court.--The 
        terms `Foreign Intelligence Surveillance Court' and `Court' 
        mean the court established by section 103(a).
            ``(3) Foreign intelligence surveillance court of review; 
        court of review.--The terms `Foreign Intelligence Surveillance 
        Court of Review' and `Court of Review' mean the court 
        established by section 103(b).
            ``(4) Electronic communication service provider.--The term 
        `electronic communication service provider' means--
                    ``(A) a telecommunications carrier, as that term is 
                defined in section 3 of the Communications Act of 1934 
                (47 U.S.C. 153);
                    ``(B) a provider of electronic communications 
                service, as that term is defined in section 2510 of 
                title 18, United States Code;
                    ``(C) a provider of a remote computing service, as 
                that term is defined in section 2711 of title 18, 
                United States Code;
                    ``(D) any other communication service provider who 
                has access to wire or electronic communications either 
                as such communications are transmitted or as such 
                communications are stored; or
                    ``(E) an officer, employee, or agent of an entity 
                described in subparagraph (A), (B), (C), or (D).
            ``(5) Element of the intelligence community.--The term 
        `element of the intelligence community' means an element of the 
        intelligence community specified in or designated under section 
        3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)).

``SEC. 703. PROCEDURES FOR ACQUIRING THE COMMUNICATIONS OF CERTAIN 
              PERSONS OUTSIDE THE UNITED STATES.

    ``(a) Authorization.--Notwithstanding any other law, the Attorney 
General and the Director of National Intelligence may authorize 
jointly, for periods of up to 1 year, the targeting of persons 
reasonably believed to be located outside the United States to acquire 
foreign intelligence information.
    ``(b) Limitations.--An acquisition authorized under subsection 
(a)--
            ``(1) may not intentionally target any person known at the 
        time of acquisition to be located in the United States;
            ``(2) may not intentionally target a person reasonably 
        believed to be outside the United States if the purpose of such 
        acquisition is to target for surveillance a particular, known 
        person reasonably believed to be in the United States, except 
        in accordance with title I; and
            ``(3) shall be conducted in a manner consistent with the 
        fourth amendment to the Constitution of the United States.
    ``(c) United States Persons Located Outside the United States.--
            ``(1) Acquisition inside the united states of united states 
        persons outside the united states.--An acquisition authorized 
        by subsection (a) that occurs inside the United States may not 
        target a United States person except in accordance with the 
        provisions of title I.
            ``(2) Acquisition outside the united states of united 
        states persons outside the united states.--An acquisition by an 
        electronic, mechanical, or other surveillance device outside 
        the United States may not intentionally target a United States 
        person reasonably believed to be outside the United States to 
        acquire the contents of a wire or radio communication sent by 
        or intended to be received by that United States person under 
        circumstances in which a person has a reasonable expectation of 
        privacy and a warrant would be required for law enforcement 
        purposes if the technique were used inside the United States 
        unless--
                    ``(A) the Attorney General or the Attorney 
                General's designee submits an application to the 
                Foreign Intelligence Surveillance Court that includes a 
                statement of the facts and circumstances relied upon by 
                the applicant to justify the Attorney General's belief 
                that the target of the acquisition is a foreign power 
                or an agent of a foreign power; and
                    ``(B) the Foreign Intelligence Surveillance Court--
                            ``(i) finds on the basis of the facts 
                        submitted by the applicant there is probable 
                        cause to believe that the target of the 
                        electronic surveillance is a foreign power or 
                        an agent of a foreign power; and
                            ``(ii) issues an ex parte order as 
                        requested or as modified approving the 
                        targeting of that United States person.
            ``(3) Procedures.--
                    ``(A) Submittal to foreign intelligence 
                surveillance court.--Not later than 30 days after the 
                date of the enactment of this title, the Attorney 
                General shall submit to the Foreign Intelligence 
                Surveillance Court the procedures to be utilized in 
                determining whether a target reasonably believed to be 
                outside the United States is a United States person.
                    ``(B) Approval by foreign intelligence surveillance 
                court.--The procedures submitted under subparagraph (A) 
                shall be utilized as described in that subparagraph 
                only upon the approval of the Foreign Intelligence 
                Surveillance Court.
                    ``(C) Utilization in targeting.--Any targeting of 
                persons authorized by subsection (a) shall utilize the 
                procedures submitted under subparagraph (A) as approved 
                by the Foreign Intelligence Surveillance Court under 
                subparagraph (B).
    ``(d) Conduct of Acquisition.--An acquisition authorized under 
subsection (a) may be conducted only in accordance with--
            ``(1) a certification made by the Attorney General and the 
        Director of National Intelligence pursuant to subsection (g); 
        and
            ``(2) the targeting and minimization procedures required 
        pursuant to subsections (e) and (f).
    ``(e) Targeting Procedures.--
            ``(1) Requirement to adopt.--The Attorney General, in 
        consultation with the Director of National Intelligence, shall 
        adopt targeting procedures that are reasonably designed to 
        ensure that any acquisition authorized under subsection (a) is 
        limited to targeting persons reasonably believed to be located 
        outside the United States.
            ``(2) Judicial review.--The procedures referred to in 
        paragraph (1) shall be subject to judicial review pursuant to 
        subsection (i).
    ``(f) Minimization Procedures.--
            ``(1) Requirement to adopt.--The Attorney General, in 
        consultation with the Director of National Intelligence, shall 
        adopt, consistent with the requirements of section 101(h), 
        minimization procedures for acquisitions authorized under 
        subsection (a).
            ``(2) Judicial review.--The minimization procedures 
        required by this subsection shall be subject to judicial review 
        pursuant to subsection (i).
    ``(g) Certification.--
            ``(1) In general.--
                    ``(A) Requirement.--Subject to subparagraph (B), 
                prior to the initiation of an acquisition authorized 
                under subsection (a), the Attorney General and the 
                Director of National Intelligence shall provide, under 
                oath, a written certification, as described in this 
                subsection.
                    ``(B) Exception.--If the Attorney General and the 
                Director of National Intelligence determine that 
                immediate action by the Government is required and time 
                does not permit the preparation of a certification 
                under this subsection prior to the initiation of an 
                acquisition, the Attorney General and the Director of 
                National Intelligence shall prepare such certification, 
                including such determination, as soon as possible but 
                in no event more than 168 hours after such 
                determination is made.
            ``(2) Requirements.--A certification made under this 
        subsection shall--
                    ``(A) attest that--
                            ``(i) there are reasonable procedures in 
                        place for determining that the acquisition 
                        authorized under subsection (a) is targeted at 
                        persons reasonably believed to be located 
                        outside the United States and that such 
                        procedures have been approved by, or will 
                        promptly be submitted for approval by, the 
                        Foreign Intelligence Surveillance Court 
                        pursuant to subsection (i);
                            ``(ii) the procedures referred to in clause 
                        (i) are consistent with the requirements of the 
                        fourth amendment to the Constitution of the 
                        United States and do not permit the intentional 
                        targeting of any person who is known at the 
                        time of acquisition to be located in the United 
                        States;
                            ``(iii) a significant purpose of the 
                        acquisition is to obtain foreign intelligence 
                        information;
                            ``(iv) the minimization procedures to be 
                        used with respect to such acquisition--
                                    ``(I) meet the definition of 
                                minimization procedures under section 
                                101(h); and
                                    ``(II) have been approved by, or 
                                will promptly be submitted for approval 
                                by, the Foreign Intelligence 
                                Surveillance Court pursuant to 
                                subsection (i);
                            ``(v) the acquisition involves obtaining 
                        the foreign intelligence information from or 
                        with the assistance of an electronic 
                        communication service provider; and
                            ``(vi) the acquisition does not constitute 
                        electronic surveillance, as limited by section 
                        701; and
                    ``(B) be supported, as appropriate, by the 
                affidavit of any appropriate official in the area of 
                national security who is--
                            ``(i) appointed by the President, by and 
                        with the consent of the Senate; or
                            ``(ii) the head of any element of the 
                        intelligence community.
            ``(3) Limitation.--A certification made under this 
        subsection is not required to identify the specific facilities, 
        places, premises, or property at which the acquisition 
        authorized under subsection (a) will be directed or conducted.
            ``(4) Submission to the court.--The Attorney General shall 
        transmit a copy of a certification made under this subsection, 
        and any supporting affidavit, under seal to the Foreign 
        Intelligence Surveillance Court as soon as possible, but in no 
        event more than 5 days after such certification is made. Such 
        certification shall be maintained under security measures 
        adopted by the Chief Justice of the United States and the 
        Attorney General, in consultation with the Director of National 
        Intelligence.
            ``(5) Review.--The certification required by this 
        subsection shall be subject to judicial review pursuant to 
        subsection (i).
    ``(h) Directives.--
            ``(1) Authority.--With respect to an acquisition authorized 
        under subsection (a), the Attorney General and the Director of 
        National Intelligence may direct, in writing, an electronic 
        communication service provider to--
                    ``(A) immediately provide the Government with all 
                information, facilities, or assistance necessary to 
                accomplish the acquisition in a manner that will 
                protect the secrecy of the acquisition and produce a 
                minimum of interference with the services that such 
                electronic communication service provider is providing 
                to the target; 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 that such electronic communication 
                service provider wishes to maintain.
            ``(2) Compensation.--The Government shall compensate, at 
        the prevailing rate, an electronic communication service 
        provider for providing information, facilities, or assistance 
        pursuant to paragraph (1).
            ``(3) Release from liability.--Notwithstanding any other 
        law, no cause of action shall lie in any court against any 
        electronic communication service provider for providing any 
        information, facilities, or assistance in accordance with a 
        directive issued pursuant to paragraph (1).
            ``(4) Challenging of directives.--
                    ``(A) Authority to challenge.--An electronic 
                communication service provider receiving a directive 
                issued pursuant to paragraph (1) may challenge the 
                directive by filing a petition with the Foreign 
                Intelligence Surveillance Court.
                    ``(B) Assignment.--The presiding judge of the Court 
                shall assign the petition filed under subparagraph (A) 
                to 1 of the judges serving in the pool established by 
                section 103(e)(1) not later than 24 hours after the 
                filing of the petition.
                    ``(C) Standards for review.--A judge considering a 
                petition to modify or set aside a directive may grant 
                such petition only if the judge finds that the 
                directive does not meet the requirements of this 
                section or is otherwise unlawful. If the judge does not 
                modify or set aside the directive, the judge shall 
                immediately affirm such directive, and order the 
                recipient to comply with the directive. The judge shall 
                provide a written statement for the record of the 
                reasons for a determination under this paragraph.
                    ``(D) Continued effect.--Any directive not 
                explicitly modified or set aside under this paragraph 
                shall remain in full effect.
            ``(5) Enforcement of directives.--
                    ``(A) Order to compel.--In the case of a failure to 
                comply with a directive issued pursuant to paragraph 
                (1), the Attorney General may file a petition for an 
                order to compel compliance with the directive with the 
                Foreign Intelligence Surveillance Court.
                    ``(B) Assignment.--The presiding judge of the Court 
                shall assign a petition filed under subparagraph (A) to 
                1 of the judges serving in the pool established by 
                section 103(e)(1) not later than 24 hours after the 
                filing of the petition.
                    ``(C) Standards for review.--A judge considering a 
                petition shall issue an order requiring the electronic 
                communication service provider to comply with the 
                directive if the judge finds that the directive was 
                issued in accordance with paragraph (1), meets the 
                requirements of this section, and is otherwise lawful. 
                The judge shall provide a written statement for the 
                record of the reasons for a determination under this 
                paragraph.
                    ``(D) Contempt of court.--Failure to obey an order 
                of the Court issued under this paragraph may be 
                punished by the Court as contempt of court.
                    ``(E) Process.--Any process under this paragraph 
                may be served in any judicial district in which the 
                electronic communication service provider may be found.
            ``(6) Appeal.--
                    ``(A) Appeal to the court of review.--The 
                Government or an electronic communication service 
                provider receiving a directive issued pursuant to 
                paragraph (1) may file a petition with the Foreign 
                Intelligence Surveillance Court of Review for review of 
                the decision issued pursuant to paragraph (4) or (5) 
                not later than 7 days after the issuance of such 
                decision. The Court of Review shall have jurisdiction 
                to consider such a petition and shall provide a written 
                statement for the record of the reasons for a decision 
                under this paragraph.
                    ``(B) Certiorari to the supreme court.--The 
                Government or an electronic communication service 
                provider receiving a directive issued pursuant to 
                paragraph (1) may file a petition for a writ of 
                certiorari for review of the decision of the Court of 
                Review issued under subparagraph (A). The record for 
                such review shall be transmitted under seal to the 
                Supreme Court of the United States, which shall have 
                jurisdiction to review such decision.
    ``(i) Judicial Review.--
            ``(1) In general.--
                    ``(A) Review by the foreign intelligence 
                surveillance court.--The Foreign Intelligence 
                Surveillance Court shall have jurisdiction to review 
                any certification required by subsection (d) or 
                targeting and minimization procedures adopted pursuant 
                to subsections (e) and (f).
                    ``(B) Submission to the court.--The Attorney 
                General shall submit to the Court any such 
                certification or procedure, or amendment thereto, not 
                later than 5 days after making or amending the 
                certification or adopting or amending the procedures.
            ``(2) Certifications.--The Court shall review a 
        certification provided under subsection (g) to determine 
        whether the certification contains all the required elements.
            ``(3) Targeting procedures.--The Court shall review the 
        targeting procedures required by subsection (e) to assess 
        whether the procedures are reasonably designed to ensure that 
        the acquisition authorized under subsection (a) is limited to 
        the targeting of persons reasonably believed to be located 
        outside the United States.
            ``(4) Minimization procedures.--The Court shall review the 
        minimization procedures required by subsection (f) to assess 
        whether such procedures meet the definition of minimization 
        procedures under section 101(h).
            ``(5) Orders.--
                    ``(A) Approval.--If the Court finds that a 
                certification required by subsection (g) contains all 
                of the required elements and that the targeting and 
                minimization procedures required by subsections (e) and 
                (f) are consistent with the requirements of those 
                subsections and with the fourth amendment to the 
                Constitution of the United States, the Court shall 
                enter an order approving the continued use of the 
                procedures for the acquisition authorized under 
                subsection (a).
                    ``(B) Correction of deficiencies.--If the Court 
                finds that a certification required by subsection (g) 
                does not contain all of the required elements, or that 
                the procedures required by subsections (e) and (f) are 
                not consistent with the requirements of those 
                subsections or the fourth amendment to the Constitution 
                of the United States, the Court shall issue an order 
                directing the Government to, at the Government's 
                election and to the extent required by the Court's 
                order--
                            ``(i) correct any deficiency identified by 
                        the Court's order not later than 30 days after 
                        the date the Court issues the order; or
                            ``(ii) cease the acquisition authorized 
                        under subsection (a).
                    ``(C) Requirement for written statement.--In 
                support of its orders under this subsection, the Court 
                shall provide, simultaneously with the orders, for the 
                record a written statement of its reasons.
            ``(6) Appeal.--
                    ``(A) Appeal to the court of review.--The 
                Government may appeal any order under this section to 
                the Foreign Intelligence Surveillance Court of Review, 
                which shall have jurisdiction to review such order. For 
                any decision affirming, reversing, or modifying an 
                order of the Foreign Intelligence Surveillance Court, 
                the Court of Review shall provide for the record a 
                written statement of its reasons.
                    ``(B) Continuation of acquisition pending rehearing 
                or appeal.--Any acquisitions affected by an order under 
                paragraph (5)(B) may continue--
                            ``(i) during the pending of any rehearing 
                        of the order by the Court en banc; and
                            ``(ii) during the pendency of any appeal of 
                        the order to the Foreign Intelligence 
                        Surveillance Court of Review.
                    ``(C) Certiorari to the supreme court.--The 
                Government may file a petition for a writ of certiorari 
                for review of a decision of the Court of Review issued 
                under subparagraph (A). The record for such review 
                shall be transmitted under seal to the Supreme Court of 
                the United States, which shall have jurisdiction to 
                review such decision.
    ``(j) Judicial Proceedings.--Judicial proceedings under this 
section shall be conducted as expeditiously as possible.
    ``(k) Maintenance of Records.--
            ``(1) Standards.--A record of a proceeding under this 
        section, including petitions filed, orders granted, and 
        statements of reasons for decision, shall be maintained under 
        security measures adopted by the Chief Justice of the United 
        States, in consultation with the Attorney General and the 
        Director of National Intelligence.
            ``(2) Filing and review.--All petitions under this section 
        shall be filed under seal. In any proceedings under this 
        section, the court shall, upon request of the Government, 
        review ex parte and in camera any Government submission, or 
        portions of a submission, which may include classified 
        information.
            ``(3) Retention of records.--A directive made or an order 
        granted under this section shall be retained for a period of 
        not less than 10 years from the date on which such directive or 
        such order is made.
    ``(l) Oversight.--
            ``(1) Semiannual assessment.--Not less frequently than once 
        every 6 months, the Attorney General and Director of National 
        Intelligence shall assess compliance with the targeting and 
        minimization procedures required by subsections (e) and (f) and 
        shall submit each such assessment to--
                    ``(A) the Foreign Intelligence Surveillance Court; 
                and
                    ``(B) the congressional intelligence committees.
            ``(2) Agency assessment.--The Inspectors General of the 
        Department of Justice and of any element of the intelligence 
        community authorized to acquire foreign intelligence 
        information under subsection (a)--
                    ``(A) are authorized to review the compliance of 
                their agency or element with the targeting and 
                minimization procedures required by subsections (e) and 
                (f);
                    ``(B) with respect to acquisitions authorized under 
                subsection (a), shall review the number of disseminated 
                intelligence reports containing a reference to a United 
                States person identity and the number of United States 
                person identities subsequently disseminated by the 
                element concerned in response to requests for 
                identities that were not referred to by name or title 
                in the original reporting;
                    ``(C) with respect to acquisitions authorized under 
                subsection (a), shall review the number of targets that 
                were later determined to be located in the United 
                States and the number of persons located in the United 
                States whose communications were reviewed; and
                    ``(D) shall provide each such review to--
                            ``(i) the Attorney General;
                            ``(ii) the Director of National 
                        Intelligence; and
                            ``(iii) the congressional intelligence 
                        committees.
            ``(3) Annual review.--
                    ``(A) Requirement to conduct.--The head of an 
                element of the intelligence community conducting an 
                acquisition authorized under subsection (a) shall 
                direct the element to conduct an annual review to 
                determine whether there is reason to believe that 
                foreign intelligence information has been or will be 
                obtained from the acquisition. The annual review shall 
                provide, with respect to such acquisitions authorized 
                under subsection (a)--
                            ``(i) an accounting of the number of 
                        disseminated intelligence reports containing a 
                        reference to a United States person identity;
                            ``(ii) an accounting of the number of 
                        United States person identities subsequently 
                        disseminated by that element in response to 
                        requests for identities that were not referred 
                        to by name or title in the original reporting; 
                        and
                            ``(iii) the number of targets that were 
                        later determined to be located in the United 
                        States and the number of persons located in the 
                        United States whose communications were 
                        reviewed.
                    ``(B) Use of review.--The head of each element of 
                the intelligence community that conducts an annual 
                review under subparagraph (A) shall use each such 
                review to evaluate the adequacy of the minimization 
                procedures utilized by such element or the application 
                of the minimization procedures to a particular 
                acquisition authorized under subsection (a).
                    ``(C) Provision of review to foreign intelligence 
                surveillance court.--The head of each element of the 
                intelligence community that conducts an annual review 
                under subparagraph (A) shall provide such review to the 
                Foreign Intelligence Surveillance Court.
            ``(4) Reports to congress.--
                    ``(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, the 
                Committee on the Judiciary of the Senate, and the 
                Committee on the Judiciary of the House of 
                Representatives, concerning the implementation of this 
                Act.
                    ``(B) Content.--Each report made under subparagraph 
                (A) shall include--
                            ``(i) any certifications made under 
                        subsection (g) during the reporting period;
                            ``(ii) any directives issued under 
                        subsection (h) during the reporting period;
                            ``(iii) the judicial review during the 
                        reporting period of any such certifications and 
                        targeting and minimization procedures utilized 
                        with respect to such acquisition, including a 
                        copy of any order or pleading in connection 
                        with such review that contains a significant 
                        legal interpretation of the provisions of this 
                        Act;
                            ``(iv) any actions taken to challenge or 
                        enforce a directive under paragraph (4) or (5) 
                        of subsection (h);
                            ``(v) any compliance reviews conducted by 
                        the Department of Justice or the Office of the 
                        Director of National Intelligence of 
                        acquisitions authorized under subsection (a);
                            ``(vi) a description of any incidents of 
                        noncompliance with a directive issued by the 
                        Attorney General and the Director of National 
                        Intelligence under subsection (h), including--
                                    ``(I) incidents of noncompliance by 
                                an element of the intelligence 
                                community with procedures adopted 
                                pursuant to subsections (e) and (f); 
                                and
                                    ``(II) incidents of noncompliance 
                                by a specified person to whom the 
                                Attorney General and Director of 
                                National Intelligence issued a 
                                directive under subsection (h);
                            ``(vii) any procedures implementing this 
                        section; and
                            ``(viii) any annual review conducted 
                        pursuant to paragraph (3).

``SEC. 704. USE OF 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, except 
for the purposes of subsection (j) of such section.''.
    (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 FOR TARGETING COMMUNICATIONS OF 
               CERTAIN PERSONS OUTSIDE THE UNITED STATES

``Sec. 701. Limitation on definition of electronic surveillance.
``Sec. 702. Definitions.
``Sec. 703. Procedures for acquiring the communications of certain 
                            persons outside the United States.
``Sec. 704. Use of information acquired under section 703.''.
    (c) Sunset.--
            (1) In general.--Except as provided in paragraph (2), the 
        amendments made by subsections (a)(2) and (b) shall cease to 
        have effect on December 31, 2013.
            (2) Continuing applicability.--Section 703(h)(3) of the 
        Foreign Intelligence Surveillance Act of 1978 (as amended by 
        subsection (a)) shall remain in effect with respect to any 
        directive issued pursuant to section 703(h) of that Act (as so 
        amended) during the period such directive was in effect. The 
        use of information acquired by an acquisition conducted under 
        section 703 of that Act (as so amended) shall continue to be 
        governed by the provisions of section 704 of that Act (as so 
        amended).

SEC. 102. STATEMENT OF EXCLUSIVE MEANS BY WHICH ELECTRONIC SURVEILLANCE 
              AND INTERCEPTION OF DOMESTIC 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:

  ``statement of exclusive means by which electronic surveillance and 
        interception of domestic communications may be conducted

    ``Sec. 112.  Chapters 119 and 121 of title 18, United States Code, 
and this Act shall be the exclusive means by which electronic 
surveillance (as defined in section 101(f), regardless of the 
limitation of section 701) and the interception of domestic wire, oral, 
or electronic communications may be conducted.''.
    (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 by adding after the item relating to section 111, the 
following:

``Sec. 112. Statement of exclusive means by which electronic 
                            surveillance and interception of domestic 
                            communications may be conducted.''.

SEC. 103. SUBMITTAL TO CONGRESS OF CERTAIN COURT ORDERS UNDER THE 
              FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.

    (a) Inclusion of Certain Orders in Semi-Annual 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 new 
subsection:
    ``(c) The Attorney General shall submit to the committees of 
Congress referred to in subsection (a) a copy of any decision, order, 
or opinion issued by the court established under section 103(a) or the 
court of review established under section 103(b) that includes 
significant construction or interpretation of any provision of this Act 
not later than 45 days after such decision, order, or opinion is 
issued.''.

SEC. 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''.

SEC. 105. ISSUANCE OF AN ORDER.

    Section 105 of the Foreign Intelligence Surveillance Act of 1978 
(50 U.S.C. 1805) is amended--
            (1) in subsection (a)--
                    (A) by striking paragraph (1); and
                    (B) by redesignating paragraphs (2) through (5) as 
                paragraphs (1) through (4), respectively;
            (2) in subsection (b), by striking ``(a)(3)'' and inserting 
        ``(a)(2)'';
            (3) in subsection (c)(1)--
                    (A) in subparagraph (D), by adding ``and'' at the 
                end;
                    (B) in subparagraph (E), by striking ``; and'' and 
                inserting a period; and
                    (C) by striking subparagraph (F);
            (4) by striking subsection (d);
            (5) by redesignating subsections (e) through (i) as 
        subsections (d) through (h), respectively;
            (6) by amending subsection (e), as redesignated by 
        paragraph (5) of this section, to read as follows:
    ``(e)(1) Notwithstanding any other provision of this title, the 
Attorney General may authorize the emergency employment of electronic 
surveillance if the Attorney General--
            ``(A) 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) determines that the factual basis for 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 168 hours 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 168 hours 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).''.

SEC. 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''.

SEC. 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); and
                    (B) by redesignating paragraphs (2) through (5) as 
                paragraphs (1) through (4), respectively; and
            (2) by amending subsection (e) to read as follows:
    ``(e)(1) Notwithstanding any other provision of this title, the 
Attorney General may authorize the emergency employment of a physical 
search if the Attorney General--
            ``(A) 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) 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 168 hours 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 168 hours from the time of authorization by the Attorney 
General, whichever is earliest.
    ``(4) A denial of the application made under this subsection may be 
reviewed as provided in section 103.
    ``(5)(A) In the event that such application for approval is denied, 
or in any other case where the physical search is terminated and no 
order is issued approving the physical search, no information obtained 
or evidence derived from such physical search shall be received in 
evidence or otherwise disclosed in any trial, hearing, or other 
proceeding in or before any court, grand jury, department, office, 
agency, regulatory body, legislative committee, or other authority of 
the United States, a State, or political subdivision thereof, and no 
information concerning any United States person acquired from such 
physical search shall subsequently be used or disclosed in any other 
manner by Federal officers or employees without the consent of such 
person, except with the approval of the Attorney General if the 
information indicates a threat of death or serious bodily harm to any 
person.
    ``(B) The Attorney General shall assess compliance with the 
requirements of subparagraph (A).''.
    (c) Conforming Amendments.--The Foreign Intelligence Surveillance 
Act of 1978 (50 U.S.C. 1801 et seq.) is amended--
            (1) in section 304(a)(4), as redesignated by subsection (b) 
        of this section, by striking ``303(a)(7)(E)'' and inserting 
        ``303(a)(6)(E)''; and
            (2) in section 305(k)(2), by striking ``303(a)(7)'' and 
        inserting ``303(a)(6)''.

SEC. 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 ``168 hours''; and
            (2) in subsection (c)(1)(C), by striking ``48 hours'' and 
        inserting ``168 hours''.

SEC. 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 
703(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.''.

SEC. 110. TECHNICAL AND CONFORMING AMENDMENTS.

    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 501(f)(1)'' 
        and inserting ``501(f)(1) or 703''; and
            (2) in paragraph (2), by striking ``105B(h) or 501(f)(1)'' 
        and inserting ``501(f)(1) or 703''.

                       TITLE II--OTHER PROVISIONS

SEC. 201. SEVERABILITY.

    If any provision of this Act, any amendment made by this Act, or 
the application thereof to any person or circumstances is held invalid, 
the validity of the remainder of the Act, any such amendments, and of 
the application of such provisions to other persons and circumstances 
shall not be affected thereby.

SEC. 202. EFFECTIVE DATE; REPEAL; TRANSITION PROCEDURES.

    (a) In General.--Except as provided in subsection (c), the 
amendments made by this Act shall take effect on the date of the 
enactment of this Act.
    (b) Repeal.--
            (1) In general.--Except as provided in subsection (c), 
        sections 105A, 105B, and 105C of the Foreign Intelligence 
        Surveillance Act of 1978 (50 U.S.C. 1805a, 1805b, and 1805c) 
        are repealed.
            (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 striking the items 
        relating to sections 105A, 105B, and 105C.
    (c) Transitions Procedures.--
            (1) Protection from liability.--Notwithstanding subsection 
        (b)(1), subsection (l) of section 105B of the Foreign 
        Intelligence Surveillance Act of 1978 shall remain in effect 
        with respect to any directives issued pursuant to such section 
        105B for information, facilities, or assistance provided during 
        the period such directive was or is in effect.
            (2) Orders in effect.--
                    (A) Orders in effect on date of enactment.--
                Notwithstanding any other provision of this Act or of 
                the Foreign Intelligence Surveillance Act of 1978--
                            (i) any order in effect on the date of 
                        enactment of this Act issued pursuant to the 
                        Foreign Intelligence Surveillance Act of 1978 
                        or section 6(b) of the Protect America Act of 
                        2007 (Public Law 110-55; 121 Stat. 556) shall 
                        remain in effect until the date of expiration 
                        of such order; and
                            (ii) at the request of the applicant, the 
                        court established under section 103(a) of the 
                        Foreign Intelligence Surveillance Act of 1978 
                        (50 U.S.C. 1803(a)) shall reauthorize such 
                        order if the facts and circumstances continue 
                        to justify issuance of such order under the 
                        provisions of such Act, as in effect on the day 
                        before the date of the enactment of the Protect 
                        America Act of 2007, except as amended by 
                        sections 102, 103, 104, 105, 106, 107, 108, and 
                        109 of this Act.
                    (B) Orders in effect on december 31, 2013.--Any 
                order issued under title VII of the Foreign 
                Intelligence Surveillance Act of 1978, as amended by 
                section 101 of this Act, in effect on December 31, 
                2013, shall continue in effect until the date of the 
                expiration of such order. Any such order shall be 
                governed by the applicable provisions of the Foreign 
                Intelligence Surveillance Act of 1978, as so amended.
            (3) Authorizations and directives in effect.--
                    (A) Authorizations and directives in effect on date 
                of enactment.--Notwithstanding any other provision of 
                this Act or of the Foreign Intelligence Surveillance 
                Act of 1978, any authorization or directive in effect 
                on the date of the enactment of this Act issued 
                pursuant to the Protect America Act of 2007, or any 
                amendment made by that Act, shall remain in effect 
                until the date of expiration of such authorization or 
                directive. Any such authorization or directive shall be 
                governed by the applicable provisions of the Protect 
                America Act of 2007 (Public Law 110-55; 121 Stat. 552), 
                and the amendment made by that Act, and, except as 
                provided in paragraph (4) of this subsection, any 
                acquisition pursuant to such authorization or directive 
                shall be deemed not to constitute 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)), as construed in accordance with 
                section 105A of the Foreign Intelligence Surveillance 
                Act of 1978 (50 U.S.C. 1805a)).
                    (B) Authorizations and directives in effect on 
                december 31, 2013.--Any authorization or directive 
                issued under title VII of the Foreign Intelligence 
                Surveillance Act of 1978, as amended by section 101 of 
                this Act, in effect on December 31, 2013, shall 
                continue in effect until the date of the expiration of 
                such authorization or directive. Any such authorization 
                or directive shall be governed by the applicable 
                provisions of the Foreign Intelligence Surveillance Act 
                of 1978, as so amended, and, except as provided in 
                section 704 of the Foreign Intelligence Surveillance 
                Act of 1978, as so amended, any acquisition pursuant to 
                such authorization or directive shall be deemed not to 
                constitute electronic surveillance (as that term is 
                defined in section 101(f) of the Foreign Intelligence 
                Surveillance Act of 1978, to the extent that such 
                section 101(f) is limited by section 701 of the Foreign 
                Intelligence Surveillance Act of 1978, as so amended).
            (4) Use of information acquired under protect america 
        act.--Information acquired from an acquisition conducted under 
        the Protect America Act of 2007 (Public Law 110-55; 121 Stat. 
        552), and the amendments made by that Act, shall be deemed to 
        be information acquired from an electronic surveillance 
        pursuant to title I of the Foreign Intelligence Surveillance 
        Act of 1978 (50 U.S.C. 1801 et seq.) for purposes of section 
        106 of that Act (50 U.S.C. 1806), except for purposes of 
        subsection (j) of such section.
            (5) New orders.--Notwithstanding any other provision of 
        this Act or of the Foreign Intelligence Surveillance Act of 
        1978--
                    (A) the government may file an application for an 
                order under the Foreign Intelligence Surveillance Act 
                of 1978, as in effect on the day before the date of the 
                enactment of the Protect America Act of 2007, except as 
                amended by sections 102, 103, 104, 105, 106, 107, 108, 
                and 109 of this Act; and
                    (B) the court established under section 103(a) of 
                the Foreign Intelligence Surveillance Act of 1978 shall 
                enter an order granting such an application if the 
                application meets the requirements of such Act, as in 
                effect on the day before the date of the enactment of 
                the Protect America Act of 2007, except as amended by 
                sections 102, 103, 104, 105, 106, 107, 108, and 109 of 
                this Act.
            (6) Extant authorizations.--At the request of the 
        applicant, the court established under section 103(a) of the 
        Foreign Intelligence Surveillance Act of 1978 shall extinguish 
        any extant authorization to conduct electronic surveillance or 
        physical search entered pursuant to such Act.
            (7) Applicable provisions.--Any surveillance conducted 
        pursuant to an order entered pursuant to this subsection shall 
        be subject to the provisions of the Foreign Intelligence 
        Surveillance Act of 1978, as in effect on the day before the 
        date of the enactment of the Protect America Act of 2007, 
        except as amended by sections 102, 103, 104, 105, 106, 107, 
        108, and 109 of this Act.
                                                       Calendar No. 529

110th CONGRESS

  1st Session

                                S. 2440

_______________________________________________________________________

                                 A BILL

    To amend the Foreign Intelligence Surveillance Act of 1978, to 
  modernize and streamline the provisions of that Act, and for other 
                               purposes.

_______________________________________________________________________

                           December 11, 2007

            Read the second time and placed on the calendar