[Congressional Record (Bound Edition), Volume 154 (2008), Part 1]
[Senate]
[Pages 1305-1306]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           TEXT OF AMENDMENTS

  SA 3979. Mr. FEINGOLD (for himself, Mr. Webb, Mr. Tester, Mr. Biden, 
Mr. Sanders, Mr. Kennedy, Mr. Menendez, Mr. Akaka, Mr. Dodd, and Mr. 
Obama) proposed an amendment to amendment SA 3911 proposed by Mr. 
Rockefeller (for himself and Mr. Bond) to the 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; as 
follows:

         On page 52, line 2, strike the quotation marks and the 
     second period and insert the following:

     ``SEC. 709. ADDITIONAL SAFEGUARDS FOR COMMUNICATIONS OF 
                   PERSONS INSIDE THE UNITED STATES.

       ``(a) Limitations on Acquisition of Communications.--
       ``(1) Limitation.--Except as authorized under title I or 
     paragraph (2), no communication shall be acquired under this 
     title if the Government knows before or at the time of 
     acquisition that the communication is to or from a person 
     reasonably believed to be located in the United States.
       ``(2) Exception.--
       ``(A) In general.--In addition to any authority under title 
     I to acquire communications described in paragraph (1), such 
     communications may be acquired if--
       ``(i) there is reason to believe that the communication 
     concerns international terrorist activities directed against 
     the United States, or activities in preparation therefor;
       ``(ii) there is probable cause to believe that the target 
     reasonably believed to be located outside the United States 
     is an agent of a foreign power and such foreign power is a 
     group engaged in international terrorism or activities in 
     preparation therefor; or
       ``(iii) there is reason to believe that the acquisition is 
     necessary to prevent death or serious bodily harm.
       ``(B) Access to communications.--Communications acquired 
     under this paragraph shall be treated in accordance with 
     subsection (b).
       ``(3) Procedures for determinations before or at the time 
     of acquisition.--
       ``(A) Submission.--Not later than 120 days after the date 
     of enactment of the FISA Amendments Act of 2008, the Attorney 
     General, in consultation with the Director of National 
     Intelligence, shall submit to the Foreign Intelligence 
     Surveillance Court for approval procedures for determining 
     before or at the time of acquisition, where reasonably 
     practicable, whether a communication is to or from a person 
     reasonably believed to be located in the United States and 
     whether the exception under paragraph (2) applies to that 
     communication.
       ``(B) Review.--The Foreign Intelligence Surveillance Court 
     shall approve the procedures submitted under subparagraph (A) 
     if the procedures are reasonably designed to determine before 
     or at the time of acquisition, where reasonably practicable, 
     whether a communication is to or from a person reasonably 
     believed to be located in the United States and whether the 
     exception under paragraph (2) applies to that communication.
       ``(C)  Procedures do not meet requirements.--If the Foreign 
     Intelligence Surveillance Court concludes that the procedures 
     submitted under subparagraph (A) do not meet the requirements 
     of subparagraph (B), 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 an 
     order under this subparagraph to the Foreign Intelligence 
     Surveillance Court of Review.
       ``(D) Use of procedures.--If the Foreign Intelligence 
     Surveillance Court approves procedures under this paragraph, 
     the Government shall use such procedures in any acquisition 
     of communications under this title.
       ``(E) Revisions.--The Attorney General, in consultation 
     with the Director of National Intelligence, may submit new or 
     amended procedures to the Foreign Intelligence Surveillance 
     Court for review under this paragraph.
       ``(F) Reliability.--If the Government obtains new 
     information relating to the reliability of procedures 
     approved under this paragraph or the availability of more 
     reliable procedures, the Attorney General shall submit to the 
     Foreign Intelligence Surveillance Court such information.
       ``(b) Limitations on Access to Communications.--
       ``(1) In general.--At such time as the Government can 
     reasonably determine that a communication acquired under this 
     title (including a communication acquired under subsection 
     (a)(2)) is to or from a person reasonably believed to be 
     located in the United States, such communication shall be 
     segregated or specifically designated and no person shall 
     access such a communication, except in accordance with title 
     I or this section.
       ``(2) Exceptions.--In addition to any authority under title 
     I, including the emergency provision in section 105(f), a 
     communication described in paragraph (1) may be accessed and 
     disseminated for a period of not longer than 7 days if--
       ``(A)(i) there is reason to believe that the communication 
     concerns international terrorist activities directed against 
     the United States, or activities in preparation therefor;
       ``(ii) there is probable cause to believe that the target 
     reasonably believed to be located outside the United States 
     is an agent of a foreign power and such foreign power is a 
     group engaged in international terrorism or activities in 
     preparation therefor; or
       ``(iii) there is reason to believe that the access is 
     necessary to prevent death or serious bodily harm;
       ``(B) the Attorney General notifies the Foreign 
     Intelligence Surveillance Court immediately of such access; 
     and
       ``(C) not later than 7 days after the date such access is 
     initiated, the Attorney General--
       ``(i) makes an application for an order under title I; or
       ``(ii) submits to the Foreign Intelligence Surveillance 
     Court a document that--
       ``(I) certifies that--
       ``(aa) there is reason to believe that the communication 
     concerns international terrorist activities directed against 
     the United States, or activities in preparation therefor;
       ``(bb) there is probable cause to believe that the target 
     reasonably believed to be located outside the United States 
     is an agent of a foreign power and such foreign power is a 
     group engaged in international terrorism or activities in 
     preparation therefor; or
       ``(cc) there is reason to believe that the access is 
     necessary to prevent death or serious bodily harm; and
       ``(II) identifies the target of the collection, the party 
     to the communication who is inside the United States if 
     known, and the extent to which information relating to the 
     communication has been disseminated.
       ``(3) Denial of court order.--If an application for a court 
     order described in paragraph (2)(C)(i) is made and is not 
     approved, the Attorney General shall submit to the court, not 
     later than 7 days after the date of the denial of the 
     application, the document described in paragraph (2)(C)(ii).
       ``(4) Additional court authorities.--
       ``(A) In general.--The Foreign Intelligence Surveillance 
     Court may--
       ``(i) limit access to communications described in paragraph 
     (1) relating to a particular target if the Court determines 
     that any certification submitted under paragraph 
     (2)(C)(ii)(I) with respect to that target is clearly 
     erroneous; and
       ``(ii) require the Attorney General to provide the factual 
     basis for a certification submitted under paragraph 
     (2)(C)(ii)(I), if the Court determines it would aid the Court 
     in conducting review under this subsection.
       ``(B) FISC access.--The Foreign Intelligence Surveillance 
     Court shall have access to any communications that have been 
     segregated or specifically designated under paragraph (1) and 
     any information the use of which has been limited under 
     paragraph (5).
       ``(5) Failure to notify.--
       ``(A) In general.--In the circumstances described in 
     subparagraph (B), access to a communication shall terminate, 
     and no information obtained or evidence derived from such

[[Page 1306]]

     access 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 access 
     shall subsequently be used or disclosed in any 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, or if a court order is obtained under 
     title I.
       ``(B) Circumstances.--The circumstances described in this 
     subparagraph are circumstances in which--
       ``(i) as of the date that is 7 days after the date on which 
     access to a communication is initiated under paragraph (2), a 
     court order described in paragraph (2)(C)(i) has not been 
     sought and the document described in paragraph (2)(C)(ii) has 
     not been submitted; or
       ``(ii) as of the date that is 7 days after an application 
     for a court order described in paragraph (2)(C)(i) is denied, 
     the document described in paragraph (2)(C)(ii) is not 
     submitted in accordance with paragraph (3).
       ``(6) Evidence of a crime.--Information or communications 
     subject to this subsection may be disseminated for law 
     enforcement purposes if it is evidence that a crime has been, 
     is being, or is about to be committed, provided that 
     dissemination is made in accordance with section 106(b).
       ``(7) Procedures for determinations after acquisition.--
       ``(A) In general.--Not later than 120 days after the date 
     of enactment of the FISA Amendments Act of 2008, the Attorney 
     General, in consultation with the Director of National 
     Intelligence, shall submit to the Foreign Intelligence 
     Surveillance Court for approval procedures for determining, 
     where reasonably practicable, whether a communication 
     acquired under this title is to or from a person reasonably 
     believed to be inside the United States.
       ``(B) Review.--The Foreign Intelligence Surveillance Court 
     shall approve the procedures submitted under subparagraph (A) 
     if the procedures are reasonably designed to determine, where 
     reasonably practicable, whether a communication acquired 
     under this title is a communication to or from a person 
     reasonably believed to be located in the United States.
       ``(C)  Procedures do not meet requirements.--If the Foreign 
     Intelligence Surveillance Court concludes that the procedures 
     submitted under subparagraph (A) do not meet the requirements 
     of subparagraph (B), 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 an 
     order under this subparagraph to the Foreign Intelligence 
     Surveillance Court of Review.
       ``(D) Use of procedures.--If the Foreign Intelligence 
     Surveillance Court approves procedures under this paragraph, 
     the Government shall use such procedures for any 
     communication acquired under this title.
       ``(E) Revisions.--The Attorney General, in consultation 
     with the Director of National Intelligence, may submit new or 
     amended procedures to the Foreign Intelligence Surveillance 
     Court for review under this paragraph.
       ``(F) Reliability.--If the Government obtains new 
     information relating to the reliability of procedures 
     approved under this paragraph or the availability of more 
     reliable procedures, the Attorney General shall submit to the 
     Foreign Intelligence Surveillance Court such information.
       ``(c) Title I Court Order.--If the Government obtains a 
     court order under title I relating to a target of an 
     acquisition under this title, the Government may access and 
     disseminate, under the terms of that court order and any 
     applicable minimization requirements, any communications of 
     that target that have been acquired and segregated or 
     specifically designated under subsection (b)(1).
       ``(d) Inspector General Audit.--
       ``(1) Audit.--Not less than once each year, the Inspector 
     General of the Department of Defense and the Inspector 
     General of the Department of Justice shall complete an audit 
     of the implementation of and compliance with this section. 
     For purposes of such audit, the Inspectors General shall have 
     access to any communications that have been segregated or 
     specifically designated under subsection (b)(1) and any 
     information the use of which has been limited under 
     subsection (b)(5). Such audit shall include an accounting of 
     such segregated or specifically designated communications 
     that have been disseminated.
       ``(2) Report.--Not later than 30 days after the completion 
     of each audit under paragraph (1), the Inspectors General 
     shall jointly 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 report 
     containing the results of the audit.
       ``(3) 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 audits under this subsection is conducted as 
     expeditiously as possible.
       ``(e) Applicability.--Subsections (a) and (b) shall apply 
     to any communication acquired under this title on or after 
     the earlier of--
       ``(1) the date that the Foreign Intelligence Surveillance 
     Court approves the procedures described in subsection (a)(3) 
     and the procedures described in subsection (b)(7); and
       ``(2) 1 year after the date of enactment of the FISA 
     Amendments Act of 2008.''.

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