[Congressional Record Volume 154, Number 10 (Wednesday, January 23, 2008)]
[Senate]
[Pages S179-S194]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      FISA AMENDMENTS ACT OF 2007

  Mr. REID. Madam President, I call for the regular order.
  The PRESIDING OFFICER. The clerk will report the pending business by 
title.
  The assistant legislative clerk read as follows:

       A bill (S. 2248) to amend the Foreign Intelligence 
     Surveillance Act of 1978, to modernize and streamline the 
     provisions of that Act, and for other purposes.

  The Senate proceeded to consider the bill, which had been reported 
from the Select Committee on Intelligence and the Committee on the 
Judiciary, with an amendment to strike all after the enacting clause 
and insert in lieu thereof the following:

     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the ``Foreign 
     Intelligence Surveillance Act of 1978 Amendments Act of 
     2007'' or the ``FISA Amendments 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 certain communications may be 
              conducted.
Sec. 103. Submittal to Congress of certain court orders under the 
              Foreign Intelligence Surveillance Act of 1978.
Sec. 104. Applications for court orders.
Sec. 105. Issuance of an order.
Sec. 106. Use of information.
Sec. 107. Amendments for physical searches.
Sec. 108. Amendments for emergency pen registers and trap and trace 
              devices.
Sec. 109. Foreign Intelligence Surveillance Court.
Sec. 110. Review of previous actions.
Sec. 111. Technical and conforming amendments.

               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. DEFINITIONS.

       ``In this title:
       ``(1) 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.
       ``(2) Additional definitions.--
       ``(A) Congressional intelligence committees.--The term 
     `congressional intelligence committees' means--
       ``(i) the Select Committee on Intelligence of the Senate; 
     and
       ``(ii) the Permanent Select Committee on Intelligence of 
     the House of Representatives.
       ``(B) Foreign intelligence surveillance court; court.--The 
     terms `Foreign Intelligence Surveillance Court' and `Court' 
     mean the court established by section 103(a).
       ``(C) 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).
       ``(D) Electronic communication service provider.--The term 
     `electronic communication service provider' means--
       ``(i) a telecommunications carrier, as that term is defined 
     in section 3 of the Communications Act of 1934 (47 U.S.C. 
     153);
       ``(ii) a provider of electronic communications service, as 
     that term is defined in section 2510 of title 18, United 
     States Code;
       ``(iii) a provider of a remote computing service, as that 
     term is defined in section 2711 of title 18, United States 
     Code;
       ``(iv) 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
       ``(v) an officer, employee, or agent of an entity described 
     in clause (i), (ii), (iii), or (iv).
       ``(E) 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. 702. PROCEDURES FOR ACQUIRING THE COMMUNICATIONS OF 
                   CERTAIN PERSONS OUTSIDE THE UNITED STATES.

       ``(a) Authorization.--Notwithstanding any other provision 
     of law, including title I, 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 a significant 
     purpose of such acquisition is to acquire the communications 
     of a specific person reasonably believed to be located in

[[Page S180]]

     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 
     under subsection (a) that constitutes electronic surveillance 
     and occurs inside the United States may not intentionally 
     target a United States person reasonably believed to be 
     outside the United States, except in accordance with the 
     procedures under title I.
       ``(2) Acquisition outside the united states of united 
     states persons outside the united states.--
       ``(A) In general.--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 reasonable expectation of 
     privacy and a warrant would be required for law enforcement 
     purposes if the technique were used inside the United States 
     unless--
       ``(i) the Foreign Intelligence Surveillance Court has 
     entered an order approving electronic surveillance of that 
     United States person under section 105, or in the case of an 
     emergency situation, electronic surveillance against the 
     target is being conducted in a manner consistent with title 
     I; or
       ``(ii)(I) the Foreign Intelligence Surveillance Court has 
     entered a order under subparagraph (B) that there is probable 
     cause to believe that the United States person is a foreign 
     power or an agent of a foreign power;
       ``(II) the Attorney General has established minimization 
     procedures for that acquisition that meet the definition of 
     minimization procedures under section 101(h); and
       ``(III) the dissemination provisions of the minimization 
     procedures described in subclause (II) have been approved 
     under subparagraph (C).
       ``(B) Probable cause determination; review.--
       ``(i) In general.--The Attorney General may submit to the 
     Foreign Intelligence Surveillance Court the determination of 
     the Attorney General, together with any supporting 
     affidavits, that a United States person who is outside the 
     United States is a foreign power or an agent of a foreign 
     power.
       ``(ii) Review.--The Court shall review, any probable cause 
     determination submitted by the Attorney General under this 
     subparagraph. The review under this clause shall be limited 
     to whether, on the basis of the facts submitted by the 
     Attorney General, there is probable cause to believe that the 
     United States person who is outside the United States is a 
     foreign power or an agent of a foreign power.
       ``(iii) Order.--If the Court, after conducting a review 
     under clause (ii), determines that there is probable cause to 
     believe that the United States person is a foreign power or 
     an agent of a foreign power, the court shall issue an order 
     approving the acquisition. An order under this clause shall 
     be effective for 90 days, and may be renewed for additional 
     90-day periods.
       ``(iv) No probable cause.--If the Court, after conducting a 
     review under clause (ii), determines that there is not 
     probable cause to believe that a United States person is a 
     foreign power or an agent of a foreign power, it shall enter 
     an order so stating and provide a written statement for the 
     record of the reasons for such determination. The Government 
     may appeal an order under this clause to the Foreign 
     Intelligence Surveillance Court of Review.
       ``(C) Review of minimization procedures.--
       ``(i) In general.--The Foreign Intelligence Surveillance 
     Court shall review the minimization procedures applicable to 
     dissemination of information obtained through an acquisition 
     authorized under subparagraph (A) to assess whether such 
     procedures meet the definition of minimization procedures 
     under section 101(h) with respect to dissemination.
       ``(ii) Review.--The Court shall issue an order approving 
     the procedures applicable to dissemination as submitted or as 
     modified to comply with section 101(h).
       ``(iii) Procedures do not meet definition.--If the Court 
     determines that the procedures applicable to dissemination of 
     information obtained through an acquisition authorized under 
     subparagraph (A) do not meet the definition of minimization 
     procedures under section 101(h) with respect to 
     dissemination, it shall enter an order so stating and provide 
     a written statement for the record of the reasons for such 
     determination. The Government may appeal an order under this 
     clause to the Foreign Intelligence Surveillance Court of 
     Review.
       ``(D) Emergency procedures.--
       ``(i) In general.--Notwithstanding any other provision of 
     this paragraph, the Attorney General may authorize the 
     emergency employment of an acquisition under subparagraph (A) 
     if the Attorney General--

       ``(I) reasonably determines that--

       ``(aa) an emergency situation exists with respect to the 
     employment of an acquisition under subparagraph (A) before a 
     determination of probable cause can with due diligence be 
     obtained; and
       ``(bb) the factual basis for issuance of a determination 
     under subparagraph (B) to approve such an acquisition exists;

       ``(II) informs a judge of the Foreign Intelligence 
     Surveillance Court at the time of such authorization that the 
     decision has been made to employ an emergency acquisition;
       ``(III) submits a request in accordance with subparagraph 
     (B) to the judge notified under subclause (II) as soon as 
     practicable, but later than 72 hours after the Attorney 
     General authorizes such an acquisition; and
       ``(IV) requires that minimization procedures meeting the 
     definition of minimization procedures under section 101(h) be 
     followed.

       ``(ii) Termination.--In the absence of a judicial 
     determination finding probable cause to believe that the 
     United States person that is the subject of an emergency 
     employment of an acquisition under clause (i) is a foreign 
     power or an agent of a foreign power, the emergency 
     employment of an acquisition under clause (i) shall terminate 
     when the information sought is obtained, when the request for 
     a determination is denied, or after the expiration of 72 
     hours from the time of authorization by the Attorney General, 
     whichever is earliest.
       ``(iii) Use of information.--If the Court determines that 
     there is not probable cause to believe that a United States 
     is a foreign power or an agent of a foreign power in response 
     to a request for a determination under clause (i)(III), or in 
     any other case where the emergency employment of an 
     acquisition under this subparagraph is terminated and no 
     determination finding probable cause is issued, no 
     information obtained or evidence derived from such 
     acquisition 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 acquisition 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.
       ``(3) Procedures.--
       ``(A) Submittal to foreign intelligence surveillance 
     court.--Not later than 30 days after the date of the 
     enactment of the FISA Amendments Act of 2007, the Attorney 
     General shall submit to the Foreign Intelligence Surveillance 
     Court the procedures to be used in determining whether a 
     target reasonably believed to be outside the United States is 
     a United States person.
       ``(B) Review by foreign intelligence surveillance court.--
     The Foreign Intelligence Surveillance Court shall review, the 
     procedures submitted under subparagraph (A), and shall 
     approve those procedures if they are reasonably designed to 
     determine whether a target reasonably believed to be outside 
     the United States is a United States person. If the Court 
     concludes otherwise, the Court shall enter an order so 
     stating and provide a written statement for the record of the 
     reasons for such determination. The Government may appeal 
     such an order to the Foreign Intelligence Surveillance Court 
     of Review.
       ``(C) Use in targeting.--Any targeting of persons 
     reasonably believed to be located outside the United States 
     shall use the procedures approved by the Foreign Intelligence 
     Surveillance Court under subparagraph (B). Any new or amended 
     procedures may be used with respect to the targeting of 
     persons reasonably believed to be located outside the United 
     States upon approval of the new or amended procedures by the 
     Court, which shall review such procedures under paragraph 
     (B).
       ``(4) Transition procedures concerning the targeting of 
     united states persons overseas.--Any authorization in effect 
     on the date of enactment of the FISA Amendments Act of 2007 
     under section 2.5 of Executive Order 12333 to intentionally 
     target a United States person reasonably believed to be 
     located 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, shall remain in 
     effect, and shall constitute a sufficient basis for 
     conducting such an acquisition of a United States person 
     located outside the United States, until that authorization 
     expires or 90 days after the date of enactment of the FISA 
     Amendments Act of 2007, whichever is earlier.
       ``(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, and that an application is 
     filed under title I, if otherwise required, when a 
     significant purpose of an acquisition authorized under 
     subsection (a) is to acquire the communications of a specific 
     person reasonably believed to be located in 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.--

[[Page S181]]

       ``(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) the procedures referred to in clause (i) require 
     that an application is filed under title I, if otherwise 
     required, when a significant purpose of an acquisition 
     authorized under subsection (a) is to acquire the 
     communications of a specific person reasonably believed to be 
     located in the United States;
       ``(iv) a significant purpose of the acquisition is to 
     obtain foreign intelligence information;
       ``(v) 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);

       ``(vi) the acquisition involves obtaining the foreign 
     intelligence information from or with the assistance of an 
     electronic communication service provider; and
       ``(vii) the acquisition is limited to communications to 
     which at least 1 party is a specific individual target who is 
     reasonably believed to be located outside of the United 
     States, and a significant purpose of the acquisition of the 
     communications of any target is to obtain foreign 
     intelligence information; 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, and are reasonably designed to 
     ensure that an application is filed under title I, if 
     otherwise required, when a significant purpose of an 
     acquisition authorized under subsection (a) is to acquire the 
     communications of a specific person reasonably believed to be 
     located in 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.--
       ``(i) In general.--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).

[[Page S182]]

       ``(ii) Limitation on use of information.--

       ``(I) In general.--Except as provided in subclause (II), no 
     information obtained or evidence derived from an acquisition 
     under clause (i)(I) 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 acquisition 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.
       ``(II) Exception.--If the Government corrects any 
     deficiency identified by the Court's order under clause (i), 
     the Court may permit the use or disclosure of information 
     acquired before the date of the correction pursuant to such 
     minimization procedures as the Court shall establish for 
     purposes of this clause.

       ``(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) Stay pending appeal.--The Government may move for a 
     stay of any order of the Foreign Intelligence Surveillance 
     Court under paragraph (5)(B)(i) pending review by the Court 
     en banc or pending appeal 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.
       ``(7) Compliance review.--The Court may review and assess 
     compliance with the minimization procedures submitted to the 
     Court pursuant to subsections (c) and (f) by reviewing the 
     semiannual assessments submitted by the Attorney General and 
     the Director of National Intelligence pursuant to subsection 
     (l)(1) with respect to compliance with minimization 
     procedures. In conducting a review under this paragraph, the 
     Court may, to the extent necessary, require the Government to 
     provide additional information regarding the acquisition, 
     retention, or dissemination of information concerning United 
     States persons during the course of an acquisition authorized 
     under subsection (a).
       ``(8) Remedial authority.--The Foreign Intelligence 
     Surveillance Court shall have authority to fashion remedies 
     as necessary to enforce--
       ``(A) any order issued under this section; and
       ``(B) compliance with any such order.
       ``(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 (c), (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 (c), (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 (c), (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. 703. USE OF INFORMATION ACQUIRED UNDER SECTION 702.

       ``Information acquired from an acquisition conducted under 
     section 702 shall be deemed to be information acquired from 
     an electronic surveillance pursuant to title I for purposes 
     of section 106, except for the purposes of subsection (j) of 
     such section.''.
       (b) 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. Definitions.
``Sec. 702. Procedures for acquiring the communications of certain 
              persons outside the United States.
``Sec. 703. Use of information acquired under section 702.''.
       (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, 2011.
       (2) Continuing applicability.--Section 702(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 702(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 702 of that Act (as so amended) shall continue 
     to be governed by the provisions of section 703 of that Act 
     (as so amended).

[[Page S183]]

     SEC. 102. STATEMENT OF EXCLUSIVE MEANS BY WHICH ELECTRONIC 
                   SURVEILLANCE AND INTERCEPTION OF CERTAIN 
                   COMMUNICATIONS MAY BE CONDUCTED.

       (a) Statement of Exclusive Means.--Title I of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et 
     seq.) is amended by adding at the end the following new 
     section:


  ``STATEMENT OF EXCLUSIVE MEANS BY WHICH ELECTRONIC SURVEILLANCE AND 
        INTERCEPTION OF CERTAIN COMMUNICATIONS MAY BE CONDUCTED

       ``Sec. 112.  (a) This Act shall be the exclusive means for 
     targeting United States persons for the purpose of acquiring 
     their communications or communications information for 
     foreign intelligence purposes, whether such persons are 
     inside the United States or outside the United States, except 
     in cases where specific statutory authorization exists to 
     obtain communications information without an order under this 
     Act.
       ``(b) Chapters 119 and 121 of title 18, United States Code, 
     and this Act shall be the exclusive means by which electronic 
     surveillance and the interception of domestic wire, oral, or 
     electronic communications may be conducted.
       ``(c) Subsections (a) and (b) shall apply unless specific 
     statutory authorization for electronic surveillance, other 
     than as an amendment to this Act, is enacted. Such specific 
     statutory authorization shall be the only exception to 
     subsection (a) and (b).''.
       (b) Conforming Amendments.--
       (1) In general.--Section 2511(2)(a) of title 18, United 
     States Code, is amended by adding at the end the following:
       ``(iii) A certification under subparagraph (ii)(B) for 
     assistance to obtain foreign intelligence information shall 
     identify the specific provision of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) that 
     provides an exception from providing a court order, and shall 
     certify that the statutory requirements of such provision 
     have been met.''.
       (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 adding after the item 
     relating to section 111, the following:

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

       (c) Offense.--Section 109(a) of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1809(a)) is amended by 
     striking ``authorized by statute'' each place it appears in 
     such section and inserting ``authorized by this title or 
     chapter 119, 121, or 206 of title 18, United States Code''.

     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) Submissions to Congress.--The Attorney General shall 
     submit to the committees of Congress referred to in 
     subsection (a)--
       ``(1) a copy of any decision, order, or opinion issued by 
     the Foreign Intelligence Surveillance Court or the Foreign 
     Intelligence Surveillance Court of Review that includes 
     significant construction or interpretation of any provision 
     of this Act, and any pleadings associated with such decision, 
     order, or opinion, not later than 45 days after such 
     decision, order, or opinion is issued; and
       ``(2) a copy of any such decision, order, or opinion, and 
     the pleadings associated with such decision, order, or 
     opinion, that was issued during the 5-year period ending on 
     the date of the enactment of the FISA Amendments Act of 2007 
     and not previously submitted in a report under subsection 
     (a).''.

     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 the Director of the Federal Bureau of Investigation is 
     unavailable--'';
       (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 the Director of the Federal Bureau of Investigation is 
     unavailable--''; 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

[[Page S184]]

       (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 702(h), hold a hearing or 
     rehearing, en banc, when ordered by a majority of the judges 
     that constitute such court upon a determination that--
       ``(i) en banc consideration is necessary to secure or 
     maintain uniformity of the court's decisions; or
       ``(ii) the proceeding involves a question of exceptional 
     importance.
       ``(B) Any authority granted by this Act to a judge of the 
     court established under this subsection may be exercised by 
     the court en banc. When exercising such authority, the court 
     en banc shall comply with any requirements of this Act on the 
     exercise of such authority.
       ``(C) For purposes of this paragraph, the court en banc 
     shall consist of all judges who constitute the court 
     established under this subsection.''.
       (2) Conforming amendments.--The Foreign Intelligence 
     Surveillance Act of 1978 is further amended--
       (A) in subsection (a) of section 103, as amended by this 
     subsection, by inserting ``(except when sitting en banc under 
     paragraph (2))'' after ``no judge designated under this 
     subsection''; and
       (B) in section 302(c) (50 U.S.C. 1822(c)), by inserting 
     ``(except when sitting en banc)'' after ``except that no 
     judge''.
       (c) Stay or Modification During an Appeal.--Section 103 of 
     the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1803) is amended--
       (1) by redesignating subsection (f) as subsection (g); and
       (2) by inserting after subsection (e) the following new 
     subsection:
       ``(f)(1) A judge of the court established under subsection 
     (a), the court established under subsection (b) or a judge of 
     that court, or the Supreme Court of the United States or a 
     justice of that court, may, in accordance with the rules of 
     their respective courts, enter a stay of an order or an order 
     modifying an order of the court established under subsection 
     (a) or the court established under subsection (b) entered 
     under any title of this Act, while the court established 
     under subsection (a) conducts a rehearing, while an appeal is 
     pending to the court established under subsection (b), or 
     while a petition of certiorari is pending in the Supreme 
     Court of the United States, or during the pendency of any 
     review by that court.
       ``(2) The authority described in paragraph (1) shall apply 
     to an order entered under any provision of this Act.''.

     SEC. 110. REVIEW OF PREVIOUS ACTIONS.

       (a) Definitions.--In this section--
       (1) 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)); and
       (2) the term ``Terrorist Surveillance Program'' means the 
     intelligence program publicly confirmed by the President in a 
     radio address on December 17, 2005, and any previous, 
     subsequent or related, versions or elements of that program.
       (b) Audit.--Not later than 180 days after the date of the 
     enactment of this Act, the Inspectors General of the 
     Department of Justice and relevant elements of the 
     intelligence community shall work in conjunction to complete 
     a comprehensive audit of the Terrorist Surveillance Program 
     and any closely related intelligence activities, which shall 
     include acquiring all documents relevant to such programs, 
     including memoranda concerning the legal authority of a 
     program, authorizations of a program, certifications to 
     telecommunications carriers, and court orders.
       (c) Report.----
       (1) In general.--Not later than 30 days after the 
     completion of the audit under subsection (b), the Inspectors 
     General shall submit to the Permanent Select Committee on 
     Intelligence and the Committee on the Judiciary of the House 
     of Representatives and the Select Committee on Intelligence 
     and the Committee on the Judiciary of the Senate a joint 
     report containing the results of that audit, including all 
     documents acquired pursuant to the conduct of that audit.
       (2) Form.--The report under paragraph (1) shall be 
     submitted in unclassified form, but may include a classified 
     annex.
       (d) Expedited Security Clearance.--The Director of National 
     Intelligence shall ensure that the process for the 
     investigation and adjudication of an application by an 
     Inspector General or any appropriate staff of an Inspector 
     General for a security clearance necessary for the conduct of 
     the audit under subsection (b) is conducted as expeditiously 
     as possible.
       (e) Additional Legal and Other Personnel for the Inspectors 
     General.--The Inspectors General of the Department of Justice 
     and of the relevant elements of the intelligence community 
     are authorized such additional legal and other personnel as 
     may be necessary to carry out the prompt and timely 
     preparation of the audit and report required under this 
     section. Personnel authorized by this subsection shall 
     perform such duties relating to the audit as the relevant 
     Inspector General shall direct. The personnel authorized by 
     this subsection are in addition to any other personnel 
     authorized by law.

     SEC. 111. 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 702''; and
       (2) in paragraph (2), by striking ``105B(h) or 501(f)(1)'' 
     and inserting ``501(f)(1) or 702''.


             Modification of Committee Reported Substitute

  Mr. REID. Madam President, I am authorized by the chairman of the 
Judiciary Committee and, certainly, a majority of the Judiciary 
Committee to modify the Judiciary substitute amendment, and I send that 
modification to the desk.
  The PRESIDING OFFICER. The amendment is so modified.
  The modification is as follows:

       Strike all after the enacting clause and insert the 
     following:

     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the ``Foreign 
     Intelligence Surveillance Act of 1978 Amendments Act of 
     2008'' or the ``FISA Amendments Act of 2008''.
       (b) Table of Contents.--The table of contents for this Act 
     is as follows:

Sec. 1. Short title; table of contents.

               TITLE I--FOREIGN INTELLIGENCE SURVEILLANCE

Sec. 101. Targeting the communications of certain persons outside the 
              United States.
Sec. 102. Statement of exclusive means by which electronic surveillance 
              and interception of certain communications may be 
              conducted.
Sec. 103. Submittal to Congress of certain court orders under the 
              Foreign Intelligence Surveillance Act of 1978.

[[Page S185]]

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. Review of previous actions.
Sec. 111. 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. DEFINITIONS.

       ``In this title:
       ``(1) In general.--The terms `agent of a foreign power', 
     `Attorney General', `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.
       ``(2) Additional definitions.--
       ``(A) Congressional intelligence committees.--The term 
     `congressional intelligence committees' means--
       ``(i) the Select Committee on Intelligence of the Senate; 
     and
       ``(ii) the Permanent Select Committee on Intelligence of 
     the House of Representatives.
       ``(B) Foreign intelligence surveillance court; court.--The 
     terms `Foreign Intelligence Surveillance Court' and `Court' 
     mean the court established by section 103(a).
       ``(C) 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).
       ``(D) Electronic communication service provider.--The term 
     `electronic communication service provider' means--
       ``(i) a telecommunications carrier, as that term is defined 
     in section 3 of the Communications Act of 1934 (47 U.S.C. 
     153);
       ``(ii) a provider of electronic communications service, as 
     that term is defined in section 2510 of title 18, United 
     States Code;
       ``(iii) a provider of a remote computing service, as that 
     term is defined in section 2711 of title 18, United States 
     Code;
       ``(iv) 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
       ``(v) an officer, employee, or agent of an entity described 
     in clause (i), (ii), (iii), or (iv).
       ``(E) 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. 702. PROCEDURES FOR ACQUIRING THE COMMUNICATIONS OF 
                   CERTAIN PERSONS OUTSIDE THE UNITED STATES.

       ``(a) Authorization.--Notwithstanding any other provision 
     of law, including title I, 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 a significant 
     purpose of such acquisition is to acquire the communications 
     of a particular, known person reasonably believed to be 
     located 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 
     under subsection (a) that occurs inside the United States 
     and--
       ``(A) constitutes electronic surveillance; or
       ``(B) is an acquisition of stored electronic communications 
     or stored electronic data that otherwise requires a court 
     order under this Act,
     may not intentionally target a United States person 
     reasonably believed to be outside the United States, except 
     in accordance with title I or III. For the purposes of an 
     acquisition under this subsection, the term `agent of a 
     foreign power' as used in those titles shall include a person 
     who is an officer of a foreign power or an employee of a 
     foreign power who is reasonably believed to have access to 
     foreign intelligence information.
       ``(2) Acquisition outside the united states of united 
     states persons outside the united states.--
       ``(A) Jurisdiction and scope.--
       ``(i) Jurisdiction.--The Foreign Intelligence Surveillance 
     Court shall have jurisdiction to enter an order pursuant to 
     subparagraph (C).
       ``(ii) Scope.--No element of the intelligence community may 
     intentionally target, for the purpose of acquiring foreign 
     intelligence information, a United States person reasonably 
     believed to be located outside the United States under 
     circumstances in which the targeted United States person has 
     a reasonable expectation of privacy and a warrant would be 
     required if the acquisition were conducted inside the United 
     States for law enforcement purposes, unless a judge of the 
     Foreign Intelligence Surveillance Court has entered an order 
     or the Attorney General has authorized an emergency 
     acquisition pursuant to subparagraph (C) or (D) or any other 
     provision of this Act.
       ``(iii) Limitations.--

       ``(I) Moving or misidentified targets.--In the event that 
     the targeted United States person is reasonably believed to 
     be in the United States during the pendency of an order 
     issued pursuant to subparagraph (C), such acquisition shall 
     cease until authority is obtained pursuant to this Act or the 
     targeted United States person is again reasonably believed to 
     be located outside the United States during the pendency of 
     an order issued pursuant to subparagraph (C).
       ``(II) Applicability.--If the acquisition could be 
     authorized under paragraph (1), the procedures of paragraph 
     (1) shall apply, unless an order or emergency acquisition 
     authority has been obtained under a provision of this Act 
     other than under this paragraph.

       ``(B) Application.--Each application for an order under 
     this paragraph shall be made by a Federal officer in writing 
     upon oath or affirmation to a judge having jurisdiction under 
     subparagraph (A)(i). Each application shall require the 
     approval of the Attorney General based upon the Attorney 
     General's finding that it satisfies the criteria and 
     requirements of such application as set forth in this 
     paragraph and shall include--
       ``(i) the identity, if known, or a description of the 
     specific United States person who is the target of the 
     acquisition;
       ``(ii) a statement of the facts and circumstances relied 
     upon to justify the applicant's belief that the target of the 
     acquisition is--

       ``(I) a United States person reasonably believed to be 
     located outside the United States; and
       ``(II) a foreign power, an agent of a foreign power, or an 
     officer or employee of a foreign power;

       ``(iii) a certification or certifications by the Assistant 
     to the President for National Security Affairs or an 
     executive branch official or officials designated by the 
     President from among those executive officers employed in the 
     area of national security or defense and appointed by the 
     President by and with the advice and consent of the Senate--

       ``(I) that the certifying official deems the information 
     sought to be foreign intelligence information;
       ``(II) that a significant purpose of the acquisition is to 
     obtain foreign intelligence information;
       ``(III) that designates the type of foreign intelligence 
     information being sought according to the categories 
     described in section 101(e); and
       ``(IV) that includes a statement of the basis for the 
     certification that the information sought is the type of 
     foreign intelligence information designated;

       ``(iv) a statement of the proposed minimization procedures 
     consistent with the requirements of section 101(h) or section 
     301(4);
       ``(v) a statement of the facts concerning any previous 
     applications that have been made to any judge of the Foreign 
     Intelligence Surveillance Court involving the United States 
     person specified in the application and the action taken on 
     each previous application; and
       ``(vi) a statement of the period of time for which the 
     acquisition is required to be maintained, provided that such 
     period of time shall not exceed 90 days per application.
       ``(C) Order.--
       ``(i) Findings.--If, upon an application made pursuant to 
     subparagraph (B), a judge having jurisdiction under 
     subparagraph (A)(i) finds that--

       ``(I) on the basis of the facts submitted by the applicant 
     there is probable cause to believe that the specified target 
     of the acquisition is--

       ``(aa) a person reasonably believed to be located outside 
     the United States; and
       ``(bb) a foreign power, an agent of a foreign power, or an 
     officer or employee of a foreign power;

       ``(II) the proposed minimization procedures, with respect 
     to their dissemination provisions, meet the definition of 
     minimization procedures under section 101(h) or section 
     301(4); and
       ``(III) the certification or certifications required by 
     subparagraph (B) are not clearly erroneous on the basis of 
     the statement made under subparagraph (B)(iii)(IV),

     the Court shall issue an ex parte order so stating.

[[Page S186]]

       ``(ii) Probable cause.--In determining whether or not 
     probable cause exists for purposes of an order under clause 
     (i)(I), a judge having jurisdiction under subparagraph (A)(i) 
     may consider past activities of the target, as well as facts 
     and circumstances relating to current or future activities of 
     the target. However, no United States person may be 
     considered a foreign power, agent of a foreign power, or 
     officer or employee of a foreign power solely upon the basis 
     of activities protected by the first amendment to the 
     Constitution of the United States.
       ``(iii) Review.--

       ``(I) Limitations on review.--Review by a judge having 
     jurisdiction under subparagraph (A)(i) shall be limited to 
     that required to make the findings described in clause (i). 
     The judge shall not have jurisdiction to review the means by 
     which an acquisition under this paragraph may be conducted.
       ``(II) Review of probable cause.--If the judge determines 
     that the facts submitted under subparagraph (B) are 
     insufficient to establish probable cause to issue an order 
     under this subparagraph, the judge shall enter an order so 
     stating and provide a written statement for the record of the 
     reasons for such determination. The Government may appeal an 
     order under this subclause pursuant to subparagraph (E).
       ``(III) Review of minimization procedures.--If the judge 
     determines that the minimization procedures applicable to 
     dissemination of information obtained through an acquisition 
     under this subparagraph do not meet the definition of 
     minimization procedures under section 101(h) or section 
     301(4), the judge shall enter an order so stating and provide 
     a written statement for the record of the reasons for such 
     determination. The Government may appeal an order under this 
     subclause pursuant to subparagraph (E).

       ``(iv) Duration.--An order under this subparagraph shall be 
     effective for a period not to exceed 90 days and such order 
     may be renewed for additional 90-day periods upon submission 
     of renewal applications meeting the requirements of 
     subparagraph (B).
       ``(D) Emergency authorization.--
       ``(i) Authority for emergency authorization.--
     Notwithstanding any other provision in this subsection, if 
     the Attorney General reasonably determines that--

       ``(I) an emergency situation exists with respect to the 
     acquisition of foreign intelligence information for which an 
     order may be obtained under subparagraph (C) before an order 
     under that subsection may, with due diligence, be obtained; 
     and
       ``(II) the factual basis for issuance of an order under 
     this paragraph exists,

     the Attorney General may authorize the emergency acquisition 
     if a judge having jurisdiction under subparagraph (A)(i) is 
     informed by the Attorney General or a designee of the 
     Attorney General at the time of such authorization that the 
     decision has been made to conduct such acquisition and if an 
     application in accordance with this paragraph is made 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 acquisition.
       ``(ii) Minimization procedures.--If the Attorney General 
     authorizes such emergency acquisition, the Attorney General 
     shall require that the minimization procedures required by 
     this subparagraph be followed.
       ``(iii) Termination of emergency authorization.--In the 
     absence of an order under subparagraph (C), the acquisition 
     shall terminate when the information sought is obtained, if 
     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.
       ``(iv) Use of information.--In the event that such 
     application is denied, or in any other case where the 
     acquisition is terminated and no order is issued approving 
     the acquisition, no information obtained or evidence derived 
     from such acquisition, except under circumstances in which 
     the target of the acquisition is determined not to be a 
     United States person during the pendency of the 168-hour 
     emergency acquisition period, 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 acquisition 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.
       ``(E) Appeal.--
       ``(i) Appeal to the court of review.--The Government may 
     file an appeal with the Foreign Intelligence Surveillance 
     Court of Review for review of an order issued pursuant to 
     subparagraph (C). The Court of Review shall have jurisdiction 
     to consider such appeal and shall provide a written statement 
     for the record of the reasons for a decision under this 
     subparagraph.
       ``(ii) Certiorari to the supreme court.--The Government may 
     file a petition for a writ of certiorari for review of the 
     decision of the Court of Review issued under clause (i). 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.
       ``(F) Joint applications and orders.--If an acquisition 
     targeting a United States person under paragraph (1) or this 
     paragraph is proposed to be conducted both inside and outside 
     the United States, a judge having jurisdiction under 
     subparagraph (A) and section 103(a) may issue simultaneously, 
     upon the request of the Government in a joint application 
     complying with the requirements of subparagraph (B) and 
     section 104 or 303, orders authorizing the proposed 
     acquisition under subparagraph (B) and section 105 or 304 as 
     applicable.
       ``(G) Concurrent authorization.--If an order authorizing 
     electronic surveillance or physical search has been obtained 
     under section 105 or 304 and that order is in effect, the 
     Attorney General may authorize, during the pendency of such 
     order and without an order under this paragraph, an 
     acquisition under this paragraph of foreign intelligence 
     information targeting that United States person while such 
     person is reasonably believed to be located outside the 
     United States. Prior to issuing such an authorization, the 
     Attorney General shall submit dissemination provisions of 
     minimization procedures for such an acquisition to a judge 
     having jurisdiction under subparagraph (A) for approval.
       ``(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, and that an application is 
     filed under title I, if otherwise required, when a 
     significant purpose of an acquisition authorized under 
     subsection (a) is to acquire the communications of a 
     particular, known person reasonably believed to be located in 
     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) the procedures referred to in clause (i) require 
     that an application is filed under title I, if otherwise 
     required, when a significant purpose of an acquisition 
     authorized under subsection (a) is to acquire the 
     communications of a particular, known person reasonably 
     believed to be located in the United States;
       ``(iv) a significant purpose of the acquisition is to 
     obtain foreign intelligence information;
       ``(v) 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);

       ``(vi) the acquisition involves obtaining the foreign 
     intelligence information from or with the assistance of an 
     electronic communication service provider; and
       ``(vii) the acquisition of the contents (as that term is 
     defined in section 2510(8) of title

[[Page S187]]

     18, United States Code)) of any communication is limited to 
     communications to which any party is an individual target 
     (which shall not be limited to known or named individuals) 
     who is reasonably believed to be located outside of the 
     United States, and a significant purpose of the acquisition 
     of the communications of the target is to obtain foreign 
     intelligence information; 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, and are reasonably designed to 
     ensure that an application is filed under title I, if 
     otherwise required, when a significant purpose of an 
     acquisition authorized under subsection (a) is to acquire the 
     communications of a particular, known person reasonably 
     believed to be located in 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.--
       ``(i) In general.--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).

       ``(ii) Limitation on use of information.--

       ``(I) In general.--Except as provided in subclause (II), no 
     information obtained or evidence derived from an acquisition 
     under clause (i)(I) concerning any United States person 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 acquisition 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.
       ``(II) Exception.--If the Government corrects any 
     deficiency identified by the Court's order under clause (i), 
     the Court may permit the use or disclosure of information 
     acquired before the date of the correction pursuant to such 
     minimization procedures as the Court shall establish for 
     purposes of this clause.

       ``(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

[[Page S188]]

     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 acquisition affected by an order under paragraph 
     (5)(B) may continue--
       ``(i) during the pendency of any rehearing of the order by 
     the Court en banc; or
       ``(ii) if the Government appeals an order under this 
     section, until the Court of Review enters an order under 
     subparagraph (C).
       ``(C) Implementation pending appeal.--Not later than 30 
     days after the date on which an appeal of an order under 
     paragraph (5)(B) directing the correction of a deficiency is 
     filed, the Court of Review shall determine, and enter a 
     corresponding order regarding, whether all or any part of the 
     correction order, as issued or modified, shall be implemented 
     during the pendency of the appeal.
       ``(D) 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.
       ``(7) Compliance reviews.--During the period that 
     minimization procedures approved under paragraph (5)(A) are 
     in effect, the Court may review and assess compliance with 
     such procedures by reviewing the semiannual assessments 
     submitted by the Attorney General and the Director of 
     National Intelligence pursuant to subsection (l)(1) with 
     respect to compliance with such procedures. In conducting a 
     review under this paragraph, the Court may, to the extent 
     necessary, require the Government to provide additional 
     information regarding the acquisition, retention, or 
     dissemination of information concerning United States persons 
     during the course of an acquisition authorized under 
     subsection (a). The Court may fashion remedies it determines 
     necessary to enforce compliance.
       ``(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 (c), (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 (c), (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 an 
     estimate of the number of persons reasonably believed to be 
     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 an estimate of the number 
     of persons reasonably believed to be 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 (c), (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. 703. USE OF INFORMATION ACQUIRED UNDER SECTION 702.

       ``Information acquired from an acquisition conducted under 
     section 702 shall be deemed to be information acquired from 
     an electronic surveillance pursuant to title I for purposes 
     of section 106, except for the purposes of subsection (j) of 
     such section.''.
       (b) 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. Definitions.
``Sec. 702. Procedures for acquiring the communications of certain 
              persons outside the United States.
``Sec. 703. Use of information acquired under section 702.''.
       (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, 2011.
       (2) Continuing applicability.--Section 702(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 702(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 702 of that Act (as so amended) shall continue 
     to be governed by the provisions of section 703 of that Act 
     (as so amended).

     SEC. 102. STATEMENT OF EXCLUSIVE MEANS BY WHICH ELECTRONIC 
                   SURVEILLANCE AND INTERCEPTION OF CERTAIN 
                   COMMUNICATIONS MAY BE CONDUCTED.

       (a) Statement of Exclusive Means.--Title I of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et 
     seq.) is amended by adding at the end the following new 
     section:

[[Page S189]]

  ``STATEMENT OF EXCLUSIVE MEANS BY WHICH ELECTRONIC SURVEILLANCE AND 
        INTERCEPTION OF CERTAIN COMMUNICATIONS MAY BE CONDUCTED

       ``Sec. 112.  (a) Except as provided in subsection (b), the 
     procedures of chapters 119, 121 and 206 of title 18, United 
     States Code, and this Act shall be the exclusive means by 
     which electronic surveillance and the interception of 
     domestic wire, oral, or electronic communications may be 
     conducted.
       ``(b) Only an express statutory authorization for 
     electronic surveillance or the interception of domestic, 
     wire, oral, or electronic communications, other than as an 
     amendment to this Act or chapters 119, 121, or 206 of title 
     18, United States Code, shall constitute an additional 
     exclusive means for the purpose of subsection (a).''.
       (b) Offense.--Section 109 of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1809) is amended--
       (1) in subsection (a), by striking ``authorized by 
     statute'' each place it appears in such section and inserting 
     ``authorized by this Act, chapter 119, 121, or 206 of title 
     18, United States Code, or any express statutory 
     authorization that is an additional exclusive means for 
     conducting electronic surveillance under section 112.''; and
       (2) by adding at the end the following:
       ``(e) Definition.--For the purpose of this section, the 
     term `electronic surveillance' means electronic surveillance 
     as defined in section 101(f) of this Act.''.
       (c) Conforming Amendments.--
       (1) Title 18, united states code.--Section 2511(2)(a) of 
     title 18, United States Code, is amended by adding at the end 
     the following:
       ``(iii) If a certification under subparagraph (ii)(B) for 
     assistance to obtain foreign intelligence information is 
     based on statutory authority, the certification shall 
     identify the specific statutory provision, and shall certify 
     that the statutory requirements have been met.''.
       (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 adding after the item 
     relating to section 111, the following:

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

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

       (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) Submissions to Congress.--The Attorney General shall 
     submit to the committees of Congress referred to in 
     subsection (a)--
       ``(1) a copy of any decision, order, or opinion issued by 
     the Foreign Intelligence Surveillance Court or the Foreign 
     Intelligence Surveillance Court of Review that includes 
     significant construction or interpretation of any provision 
     of this Act, and any pleadings associated with such decision, 
     order, or opinion, not later than 45 days after such 
     decision, order, or opinion is issued; and
       ``(2) a copy of any such decision, order, or opinion, and 
     the pleadings associated with such decision, order, or 
     opinion, that was issued during the 5-year period ending on 
     the date of the enactment of the FISA Amendments Act of 2008 
     and not previously submitted in a report under subsection 
     (a).''.

     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 the Director of the Federal Bureau of Investigation is 
     unavailable--'';
       (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 the Director

[[Page S190]]

     of the Federal Bureau of Investigation is unavailable--''; 
     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 702(h), hold a hearing or 
     rehearing, en banc, when ordered by a majority of the judges 
     that constitute such court upon a determination that--
       ``(i) en banc consideration is necessary to secure or 
     maintain uniformity of the court's decisions; or
       ``(ii) the proceeding involves a question of exceptional 
     importance.
       ``(B) Any authority granted by this Act to a judge of the 
     court established under this subsection may be exercised by 
     the court en banc. When exercising such authority, the court 
     en banc shall comply with any requirements of this Act on the 
     exercise of such authority.
       ``(C) For purposes of this paragraph, the court en banc 
     shall consist of all judges who constitute the court 
     established under this subsection.''.
       (2) Conforming amendments.--The Foreign Intelligence 
     Surveillance Act of 1978 is further amended--
       (A) in subsection (a) of section 103, as amended by this 
     subsection, by inserting ``(except when sitting en banc under 
     paragraph (2))'' after ``no judge designated under this 
     subsection''; and
       (B) in section 302(c) (50 U.S.C. 1822(c)), by inserting 
     ``(except when sitting en banc)'' after ``except that no 
     judge''.
       (c) Stay or Modification During an Appeal.--Section 103 of 
     the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1803) is amended--
       (1) by redesignating subsection (f) as subsection (g); and
       (2) by inserting after subsection (e) the following new 
     subsection:
       ``(f)(1) A judge of the court established under subsection 
     (a), the court established under subsection (b) or a judge of 
     that court, or the Supreme Court of the United States or a 
     justice of that court, may, in accordance with the rules of 
     their respective courts, enter a stay of an order or an order 
     modifying an order of the court established under subsection 
     (a) or the court established under subsection (b) entered 
     under any title of this Act, while the court established 
     under subsection (a) conducts a rehearing, while an appeal is 
     pending to the court established under subsection (b), or 
     while a petition of certiorari is pending in the Supreme 
     Court of the United States, or during the pendency of any 
     review by that court.
       ``(2) The authority described in paragraph (1) shall apply 
     to an order entered under any provision of this Act.''.

     SEC. 110. REVIEW OF PREVIOUS ACTIONS.

       (a) Definitions.--In this section:
       (1) Appropriate committees of congress.--The term 
     ``appropriate committees of Congress'' means--
       (A) the Select Committee on Intelligence and the Committee 
     on the Judiciary of the Senate; and
       (B) the Permanent Select Committee on Intelligence and the 
     Committee on the Judiciary of the House of Representatives.
       (2) Terrorist surveillance program and program.--The terms 
     ``Terrorist Surveillance Program'' and ``Program'' mean the 
     intelligence activity involving communications that was 
     authorized by the President during the period beginning on 
     September 11, 2001, and ending on January 17, 2007.
       (b) Reviews.--
       (1) Requirement to conduct.--The Inspectors General of the 
     Office of the Director of National Intelligence, the 
     Department of Justice, the National Security Agency, and any 
     other element of the intelligence community that participated 
     in the Terrorist Surveillance Program shall work in 
     conjunction to complete a comprehensive review of, with 
     respect to the oversight authority and responsibility of each 
     such Inspector General--
       (A) all of the facts necessary to describe the 
     establishment, implementation, product, and use of the 
     product of the Program;
       (B) the procedures and substance of, and access to, the 
     legal reviews of the Program;
       (C) communications with, and participation of, individuals 
     and entities in the private sector related to the Program;
       (D) interaction with the Foreign Intelligence Surveillance 
     Court and transition to court orders related to the Program; 
     and
       (E) any other matters identified by such an Inspector 
     General that would enable that Inspector General to report a 
     complete description of the Program, with respect to such 
     element.
       (2) Cooperation.--Each Inspector General required to 
     conduct a review under paragraph (1) shall--
       (A) work in conjunction, to the extent possible, with any 
     other Inspector General required to conduct such a review; 
     and
       (B) utilize to the extent practicable, and not 
     unnecessarily duplicate or delay, such reviews or audits that 
     have been completed or are being undertaken by such an 
     Inspector General or by any other office of the Executive 
     Branch related to the Program.
       (c) Reports.--
       (1) Preliminary reports.--Not later than 60 days after the 
     date of the enactment of this Act, the Inspectors General of 
     the Office of the Director of National Intelligence and the 
     Department of Justice, in conjunction with any other 
     Inspector General required to conduct a review under 
     subsection (b)(1), shall submit to the appropriate committees 
     of Congress an interim report that describes the planned 
     scope of such review.
       (2) Final report.--Not later than 1 year after the date of 
     the enactment of this Act, the Inspectors General required to 
     conduct such a review shall submit to the appropriate 
     committees of Congress, to the extent practicable, a 
     comprehensive report on such reviews that includes any 
     recommendations of such Inspectors General within the 
     oversight authority and responsibility of such Inspector 
     General with respect to the reviews.
       (3) Form.--A report submitted under this subsection shall 
     be submitted in unclassified form, but may include a 
     classified annex. The unclassified report shall not disclose 
     the name or identity of any individual or entity

[[Page S191]]

     of the private sector that participated in the Program or 
     with whom there was communication about the Program.
       (d) Resources.--
       (1) Expedited security clearance.--The Director of National 
     Intelligence shall ensure that the process for the 
     investigation and adjudication of an application by an 
     Inspector General or any appropriate staff of an Inspector 
     General for a security clearance necessary for the conduct of 
     the review under subsection (b)(1) is carried out as 
     expeditiously as possible.
       (2) Additional legal and other personnel for the inspectors 
     general.--An Inspector General required to conduct a review 
     under subsection (b)(1) and submit a report under subsection 
     (c) is authorized to hire such additional legal or other 
     personnel as may be necessary to carry out such review and 
     prepare such report in a prompt and timely manner. Personnel 
     authorized to be hired under this paragraph--
       (A) shall perform such duties relating to such a review as 
     the relevant Inspector General shall direct; and
       (B) are in addition to any other personnel authorized by 
     law.

     SEC. 111. 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 702''; and
       (2) in paragraph (2), by striking ``105B(h) or 501(f)(1)'' 
     and inserting ``501(f)(1) or 702''.

                       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, 2011.--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, 2011, 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 (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, 
     2011.--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, 
     2011, 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.
       (4) Use of information acquired under protect america 
     act.--Information acquired from an acquisition conducted 
     under the Protect America Act of 2007, 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.
  Mr. REID. Madam President, we have conferred with our colleagues on 
the other side of the aisle. Senator Bond is aware of this new 
amendment. He has not had time to study the amendment. He has been busy 
all day, as have all my Republican colleagues at their retreat. But he 
will have time to work on this tonight. His staff is working on it. We 
hope tomorrow to have a couple hours of debate, and then it is my 
understanding there could be and likely will be a motion to table this 
amendment.
  I want to make sure Senators have adequate time to debate this 
amendment tomorrow. This is, if not the key amendment, one of the key 
amendments to this legislation, and we want to make sure everyone has 
adequate time. We are going to come in early in the morning and start 
this matter as quickly as we can. So I am not going to ask consent 
tonight as to how much time will be spent on it, but this will be the 
matter we take up tomorrow.
  I have spoken to Senator Whitehouse, who is a member not only of the 
Judiciary Committee but also the Intelligence Committee. He has a very 
important amendment he wishes to offer. It is a bipartisan amendment he 
has worked on for a significant period of time, and we look forward to 
this amendment.
  Hopefully, we can work our way through some of these contentious 
amendments tomorrow. It is something we need to do, and we are going to 
work as hard as we can. There are strong feelings on each side. 
Everyone has worked in good faith. I especially appreciate the 
cooperation of Senator Leahy and Senator Rockefeller. They have not 
agreed on everything, but they have agreed on a lot, and they have 
worked in a very professional manner in working our way to the point 
where we now are.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Madam President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Madam President, there will be no more votes tonight. We 
have a number of Senators who wish to speak. We understand Senator Bond 
will be here, Senator Rockefeller will be here, Senator Dodd will be 
here. That is good. They are going to be

[[Page S192]]

speaking about the legislation that is now before this body.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. CARDIN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CARDIN. Madam President, I take this time to speak in favor of 
the Leahy substitute amendment to the FISA legislation. I start by 
thanking Senator Rockefeller and Senator Bond, Senator Leahy and 
Senator Specter for their extraordinary work on this most difficult 
subject. This is not an easy subject. We are dealing with a technology 
that has changed and the need of our country to get information through 
our intelligence community, which is important for our national 
security, and protecting the constitutional and civil rights of the 
people of our Nation.
  The Leahy substitute is a bill that was carefully worked and drafted 
within the Judiciary Committee. The Intelligence Committee came up with 
their legislation. We passed it rather quickly before the recess. The 
Judiciary Committee spent a lot of time looking at the substance of how 
we could make sure we got the language right, to make sure the 
intelligence community has the information they need, and that we do 
protect the rights of the people of our own country. The Leahy 
substitute does that, with the right balance.
  I start by saying that I have been to NSA on many occasions. It is 
located in the State of Maryland. The dedicated men and women who work 
there work very hard to protect the interests of our Nation. They do it 
with a great deal of dedication and sensitivity to the type of 
information they obtain and how important it is to our country, but it 
must be done in the right way. The need for the FISA legislation is so 
we can continue to get information from non-Americans that is important 
for our national security. Much of this information is obtained from 
what we call foreign to foreign, where we have communications between 
an American and a non-American in a country outside of the United 
States, but because of technology it falls within the definition of the 
FISA statute. We need to clarify that in a way that will allow the 
intelligence community to get that information foreign to foreign, 
information that is important for the security of our country. The 
Leahy substitute recognizes the change in technology and the need for 
this information but does it in a way that protects the constitutional 
rights of the citizens of our own country and the civil rights of 
Americans.
  Where an American is a target, that person should have certain 
rights. The Leahy substitute protects Americans who are targets of 
intelligence gathering when they are outside of the United States. When 
they are inside the United States, there has never been a question that 
you need to get certain warrants and certain information. Well, this 
legislation also makes it clear that where an American is a target 
outside of the United States, that individual will have proper 
protection. But the legislation goes further and says that in the 
course of obtaining information, you may get incidental information 
about an American who was not the target of the investigation, but the 
American comes up in the communication that has been gathered. We have 
certain minimization rules to protect the rights of Americans who are 
incidental to the information being gathered by the intelligence 
community. The Leahy substitute protects Americans through 
strengthening the minimization rules.
  The Leahy substitute protects the process by involving the courts. 
The FISA courts are involved in making sure that the right procedures 
are used in gathering information so that Americans are protected.
  The Leahy substitute contains a provision offered by Senator 
Feinstein to make it clear that the gathering of information under the 
FISA statute is the exclusive way in which the intelligence community 
can get information of foreign-to-foreign communications or 
communications that involve telecommunications centers located in the 
United States, but that the FISA statute is the exclusive way to 
proceed so there will not be confusion in the future as to whether 
there are extraordinary authorities you can use warrantless types of 
intercepts without having congressional approval. It is the right 
balance, as I have indicated before, and I urge my colleagues to 
support the Judiciary Committee's substitute offered by Senator Leahy.
  It even goes further than that. The Leahy substitute does not contain 
the retroactive immunity. The Intelligence Committee bill contains 
retroactive immunity for telecommunications companies. Now, my major 
problem with that is it will take away the appropriate jurisdiction of 
our courts to act as a check and balance on potential abuses of our 
rights of privacy. I must tell my colleagues--and I said this in the 
Judiciary Committee and I have said it on the floor--that 
telecommunications companies operating in good faith are entitled to 
help, entitled to relief. They have serious problems in defending their 
rights because of the confidential nature of the information they are 
dealing with, but there are ways to deal with that without compromising 
the independence of the judicial branch of Government, without 
compromising in the future the ability of our courts to make sure we 
protect the rights of our citizens.
  If we adopt the Leahy substitute, there are going to be other 
amendments that will be offered that will deal in a responsible way 
with the concerns of the telecommunications companies. Senator Specter 
has an amendment that says: Look, if the telecommunications companies 
are operating in good faith, if they are innocent in all this where 
they can't defend themselves, then let's let the Government be 
substituted for the telecommunications company. That protects their 
interests, without compromising the ability of our courts to make sure 
that all of our rights have been protected. I think that is a better 
course than what the Intelligence Committee did. There will be an 
amendment offered by Senator Feinstein which I am a cosponsor of that 
says, look, we should at least have the courts--the courts--make a 
judgment as to whether the telecommunications companies operated in 
good faith under law. That decision shouldn't be made by the executive 
branch that asked them for the information. That makes common sense to 
me and offers us at least some protection to make sure we are moving 
with court supervision. So the Leahy substitute offers us the advantage 
of eliminating the retroactive immunity which is extremely 
controversial, and allows us to consider that in its own right, which I 
am certain we will have a chance to do by the amendments that have been 
noted.
  In addition, the Leahy substitute contains an amendment I offered in 
the Judiciary Committee that changes the sunset provisions, the 
termination of these provisions, from a 6-year sunset to a 4-year 
sunset. Why is that important? First, it is interesting to point out 
that the members of the Intelligence Committee and the members of the 
Judiciary Committee, in fact all of the Members of this body, have said 
we have gotten a lot of cooperation from the intelligence community, 
from the administration in carrying out our responsibility as the 
legislative branch of Government to oversee what the executive branch 
is doing in this area. There has been tremendous cooperation. Why? 
Because they know we have to pass a statute to continue this authority. 
We have gotten access to information that at least initially the 
administration indicated we would not have access to. Well, we got 
access to it--some of us did. I am sorry more were not offered the 
opportunity to take a look at the confidential communications--the 
classified communications. That type of cooperation is helpful when you 
have the requirement that Congress has to act.

  Four years is preferable to six because it will mean the next 
administration that will take office in January of next year will have 
to deal with this issue. If we continue a 6-year sunset, there will be 
no need for the next two Congresses and the administration ever to have 
to deal with this authority and to take a look at it to see whether it 
is operating properly, to see whether technology changes have caused it 
to need to change the way the law is

[[Page S193]]

drafted. But a 4-year sunset will mean we will have plenty of time for 
the agency with predictability to establish its practices for gathering 
intelligence information about foreign subjects, but we will also have 
an opportunity to review during the next administration whether these 
provisions need to be modified, whether there is a different way, a 
more effective way that we can get this information protecting the 
rights of the people of this Nation.
  For all of those reasons, I urge this body to approve the substitute 
that is being offered by Senator Leahy. It is the product of the 
Judiciary Committee. I believe it is a better way for us to collect the 
information. It gives us the chance to take a look at the immunity 
issue fresh and to make sure we don't compromise in the future the 
proper roles of our courts in protecting the privacy of the citizens of 
our own country. It provides for a much stronger oversight by the 
legislative branch of Government, and I urge my colleagues to support 
that amendment.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Ohio is recognized.


                              The Economy

  Mr. BROWN. Madam President, I appreciate the comments of my colleague 
from Maryland and his insight. The economic house in our country is not 
in order. The United States may be entering its first recession since 
2001--since the beginning of the Bush Presidency. It is pretty clear in 
my State of Ohio, from places I visited in January, from Kenton to 
Celina to Cincinnati to Lancaster, to places all over my State, that 
people are suffering. Food banks are at their most perilous time in at 
least 20 years.
  In Logan, OH, a small community halfway between Columbus and the 
center of the State and the Ohio River and the town of Athens, halfway 
between Hocking County and Logan, OH, is the United Methodist Food 
Pantry. At 3:30 in the morning on a cold December day just about a 
month ago, people began to line up to go to this food bank, and by 8 
o'clock, when the doors opened, cars were all the way up and down the 
road. This is a small county. By 1 o'clock in the afternoon, 2,000 
people--7 percent of the people in this rural Appalachian county, 
Hocking County, Logan, OH--had come to this food bank; 2,000 people, 7 
percent of the people who live in this county, many having driven 20 or 
30 minutes to get there.
  Middle-class families in Ohio and throughout our Nation face higher 
costs for energy and health care and education, amidst stagnant wages 
and falling home prices. In Lebanon, OH, in Warren County, the United 
Way director told me 90 percent of people going to food banks to pick 
up food are employed.
  The mayor of Denver told a group of us today--Senator Stabenow and 
others--that 40 percent of homeless people in greater Denver are 
employed, they have jobs, but not making enough because of foreclosures 
or cost of food or transportation, simply not making--making low wages, 
not making enough to make a go of it.
  Our Nation is bleeding jobs. The middle class is shrinking. People 
are hurting. When it comes to responding to these realities, we have 
several choices. We can try to buy time, as many of the Republican 
candidates for President are saying, and leave it at that. The economy 
is cyclical; it will get better; let's ride it out. No government 
involvement at all. That is one option.
  The second option is we can enact a short-term economic stimulus 
package where we put money in the pockets of middle-class taxpayers, 
whether they are paying income tax or Social Security tax, put money in 
the pockets of middle-class taxpayers, extend unemployment 
compensation, offer aid for food stamps and food banks, and also offer 
aid to LIHEAP for seniors who are particularly victimized by this 
recession.
  The third option is we can learn from our mistakes. We certainly need 
to do the short-term economic stimulus package. That is very important, 
but that is not enough. We can learn from our mistakes. We can confront 
the underlying causes of our Nation's economic stability. I want to 
focus on one of those causes. It is a refusal to acknowledge that U.S. 
trade policies must evolve as the global marketplace does.
  When I first ran for Congress in 1992--the same year as the Presiding 
Officer was elected from her State of Washington--our trade deficit was 
$38 billion. Our trade deficit figures for 2007 are estimated at nearly 
$800 billion, and that is before we count the December numbers. So we 
know our trade deficit went from $38 billion to, a decade and a half 
later, nearly $800 billion.
  President George Herbert Walker Bush has said that $1 billion in 
trade deficit or surplus translates into 13,000 jobs. So if you sell a 
billion dollars more out of the country than you import, that is a net 
increase of 13,000 jobs. If you export $1 billion less than you export, 
then that is costing 13,000 jobs. Do the math. We went from a $38 
billion trade deficit to an $800 billion trade deficit.
  The fact is, these job-killing trade agreements are hemorrhaging jobs 
out of our country and our manufacturing communities, from small towns 
such as Tippin, OH, to cities as large as Cleveland, OH, from places 
like Chillicothe, to places like Columbus. The U.S. trade deficit with 
China, which has continued to spiral upward, hit $238 billion through 
November of 2007. In 1992, the year I ran for Congress, our trade 
deficit with China was slightly over $10 billion. It hit over $238 
billion, and that is just through November 2007. As President Bush the 
first said, $1 billion in trade deficit costs 13,000 jobs. Do the math.
  Just with China alone, this is the highest annual imbalance ever 
recorded with a single country, with any bilateral relationship in 
world history. The trade deficit we have with China now accounts for 33 
percent of the U.S. total trade deficit in goods.
  Since 1982, our Nation has accumulated trade deficits of $4.3 
trillion. That is money that must be eventually repaid. When you look 
at $4.3 trillion, think of the first President Bush's formula: a 
billion-dollar trade deficit costs 13,000 jobs.
  Today, Americans are losing jobs for reasons, frankly, that have 
nothing to do with this recession. They have much to do with our 
country's narrow, myopic, tunnel-vision trade policies. When we craft 
trade deals that favor gains for multinational corporations over 
evenhanded competition for both trading partners, why should we be 
surprised when U.S. companies are crippled or they move out of the 
country? In Tippin, OH, where I visited a week and a half ago, workers 
are losing their pensions, health care, or the company has come in and 
raided these communities and put people out of work, so there are less 
dollars for schools, less dollars for police protection, for fire 
protection, and fewer dollars for the local hardware store, fewer 
dollars for the local restaurants, all of that.
  That is why we need to enforce trade rules meant to prevent 
anticompetitive practices by countries such as China. We should not be 
surprised when our manufacturing sector--which is not only crucial to 
our economy but to national security--falters because of these 
anticompetitive practices. It is not in our Nation's best interest to 
rely on other nations for our defense infrastructure, our 
transportation infrastructure, our industrial infrastructure.
  The tragedy is, we in this country do the best research and 
development in the world. We do the research and development and so 
often companies take that research and development and make the 
products in other countries. Then we continue to do research and 
development, and they continue to take the production of these items 
and goods and this research and these high-tech products out of our 
country. The research and development certainly creates jobs, good, 
high-paying jobs, many in the State of the Presiding Officer and many 
in mine.
  The fact is, we cannot continue to run an economy when we do the 
research and development in this country and then we farm out the 
production of those goods that are developed to other countries, to 
exploit low-wage labor, to exploit weak environmental laws, to exploit 
worker safety laws, to exploit the consumer products safety net. Look 
at the toxic toys coming from China and the contaminated toothpaste and 
dog food, and the unsafe tires coming from countries that don't have a 
consumer products safety net and the food safety net we have.

[[Page S194]]

  We clearly need a stronger manufacturing sector such as we have had 
in our history. That sector cannot effectively compete against 
companies subsidized by the Chinese Government, companies that pay 
slave wages, that too often churn out dangerous toys that end up in our 
children's bedrooms, and toxic, contaminated food that ends up too 
often in our families breakfast rooms.
  On a level, competitive playing field, U.S. companies thrive. When 
the cards are stacked against them, they struggle, of course.
  In 2007, prior to the onset of the 2008 recession, 217,000 
manufacturing jobs across the country were lost. That was last year 
before this recession seems to have deepened. Madam President, 217,000 
jobs were lost in the manufacturing sector last year in places such as 
Youngstown, Warren, Ravenna, and Lima, all over my State.
  The United States now has fewer manufacturing jobs--get this--the 
United States, now with 300 million people, has fewer manufacturing 
jobs today than it did in 1950 when we had about 150 million people in 
our country. Manufacturing jobs bring wealth to our communities. A job 
that pays $15 an hour in Marion, OH, and pays $14 an hour in 
Springfield, OH, brings wealth into the community that spends out into 
other jobs and prosperity for other people in the community.
  We have lost more than 3 million manufacturing jobs since President 
Bush took office in 2001. Many of these jobs have been eliminated 
because of imports from China or direct offshoring to countries such as 
China.
  Last week, NewPage, a paper manufacturing company based in 
Miamisburg, OH, near Dayton, announced it was shutting down plants in 
Wisconsin, Maine, and Chillicothe, OH. Heavily government-subsidized 
Chinese paper producers account for nearly 50 percent of the world 
market.
  One country, because of subsidies and low wages, unenforced 
environmental rules, and pretty much nonexistent protection for 
workers, accounts for 50 percent of the world market. That is not free 
trade, that is a racket.
  China has done little to address the fundamental misalignment of its 
currency, a practice that continues to take jobs and wealth from our 
country, and they don't share it with their workers. If they didn't 
have an oppressive, authoritarian government, it would be a different 
story. They are taking wealth out of our country, and it means higher 
profits for outsourcing companies, more money for the Chinese Communist 
Party, for the People's Liberation Army, but not much for Chinese 
workers.

  When we allow China to manipulate currency, trade isn't free, it is 
fixed. When we allow China to import dangerous products into our 
country, we should not be surprised when Americans balk.
  It took generations for our Nation to build a solid product safety 
system. If we don't demand safe imports from China and our other 
trading partner nations, our investment in U.S. product safety becomes 
an exercise in futility. Think how it happens. U.S. companies shut down 
an American toy manufacturer, for instance, and those U.S. companies, 
after shutting down the manufacturing in the United States, move to 
China. China is a country with low wages, unenforced environmental and 
worker safety standards. The U.S. company goes to China because of weak 
environmental and worker safety standards and low wages. Because they 
don't enforce those rules, you know what is going to happen. Products 
made in those countries will be made in bad conditions, and there is 
likely to be toxic or dangerous toys, and more likely to be 
contaminated food.
  The U.S. companies in China then push their Chinese subcontractors to 
cut costs because they want more profit. So they are pushing the 
Chinese subcontractors to cut costs, and then those products that are 
imported into the United States are even more dangerous. Then the 
Consumer Products Safety Commission in this country--because of 
President Bush's decisions, we have weakened the regulatory system, so 
those products come in and there are not enough inspectors. The laws 
are weakened, so the dangerous toys and contaminated food too often 
ends up in our family rooms, bedrooms, and our kitchens.
  Some free-trade proponents say workers and consumers should get over 
it, get used to it; it is globalization and there is nothing you can do 
about it. That is wrong.
  Continuing this course will not only cost the middle class more jobs, 
it will cost our economy its global leadership. It will foist so much 
debt on our children and their children that basic economic security, 
basic retirement security may be reserved for the fortunate few. 
Certainly not the middle class. And as for the poor, just let them eat 
cake.
  The people in Ohio, in all corners, are swimming upstream against 
deteriorating economic forces. One important reason for that is that 
Federal policymakers continue to cling to the fantasy that markets run 
themselves and police themselves, and as long as the rich are getting 
richer, wealth will trickle down, jobs will be created, and everybody 
is better off.
  It is time to take the blinders off. To secure our economy for the 
future, we need to write trade rules that crack down on anticompetitive 
gaming. In our country, still the most powerful in the world, with the 
most vigorous economy, we need to write trade rules that crack down on 
anticompetitive gaming of the system. That is what they have done. We 
need trade rules that prevent dangerous products from entering our 
country. We need trade rules that acknowledge that destroying the 
environment in any country, whether it is China or the United States, 
is a threat to every country.
  We need to take responsibility for the consequences of our inaction 
when it comes to trade policy. We need to take responsibility for the 
consequences of mistakes we have made in writing trade policy. We need 
to change course, and we need to do it now.
  I yield the floor.
  (Mr. CASEY assumed the Chair.)

                          ____________________