[Congressional Record Volume 153, Number 188 (Monday, December 10, 2007)]
[Senate]
[Pages S15064-S15070]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. REID:
  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; read the first time.
  Mr. REID. Mr. President, I ask unanimous consent that the text of the 
bill be printed in the Record.

[[Page S15065]]

  There being no objection, the text of the bill was ordered to be 
placed in the Record, as follows:

                                S. 2440

       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.

[[Page S15066]]

       ``(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

[[Page S15067]]

       ``(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 paragraphs (4) or (5) of subsections (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

[[Page S15068]]

     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--

[[Page S15069]]

       (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

[[Page S15070]]

     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.
                                 ______