[House Report 109-696]
[From the U.S. Government Publishing Office]



109th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     109-696

======================================================================
 
   PROVIDING FOR CONSIDERATION OF H.R. 5825, ELECTRONIC SURVEILLANCE 
                           MODERNIZATION ACT

                                _______
                                

 September 28, 2006.--Referred to the House Calendar and ordered to be 
                                printed

                                _______
                                

    Mr. Putnam, from the Committee on Rules, submitted the following

                              R E P O R T

                      [To accompany H. Res. 1052]

    The Committee on Rules, having had under consideration 
House Resolution 1052, by a non-record vote, reports the same 
to the House with the recommendation that the resolution be 
adopted.

                SUMMARY OF PROVISIONS OF THE RESOLUTION

    The resolution provides for the consideration of H.R. 5825, 
the Electronic Surveillance Modernization Act, under a closed 
rule. The rule provides 90 minutes of debate in the House, with 
60 minutes equally divided and controlled by the chairman and 
ranking minority member of the Committee on the Judiciary, and 
30 minutes equally divided and controlled by the chairman and 
ranking minority member of the Permanent Select Committee on 
Intelligence. The rule waives all points of order against 
consideration of the bill. The rule provides that in lieu of 
the amendments in the nature of a substitute as reported by the 
Committee on the Judiciary and the Permanent Select Committee 
on Intelligence, the amendment in the nature of a substitute 
printed in this report shall be considered as adopted. The rule 
provides one motion to recommit with or without instructions.
    Finally, the rule provides that, notwithstanding the 
operation of the previous question, the Chair may postpone 
further consideration of the bill to a time designated by the 
Speaker.

                         EXPLANATION OF WAIVERS

    The waiver of all points of order against consideration of 
the bill includes a waiver of clause 4(a) of rule XIII 
(requiring a three-day layover of the committee report). The 
waiver is necessary because both the Permanent Select Committee 
on Intelligence and the Committee on the Judiciary filed their 
reports (H. Rept. 109-680, Part I and H. Rept. 109-680, Part 
II, respectively) with the House on Monday, September 25, 2006, 
but printed versions of the report were not available until 
Thursday, September 28, 2006 and the bill may be considered by 
the House as early as Thursday, September 28, 2006.

                            COMMITTEE VOTES

    Pursuant to clause 3(b) of House rule XIII the results of 
each record vote on an amendment or motion to report, together 
with the names of those voting for and against, are printed 
below:

Rules Committee record vote No. 252

    Date: September 28, 2006.
    Measure: H.R. 5825, Electronic Surveillance Modernization 
Act.
    Motion by: Mrs. Slaughter.
    Summary of motion: To grant an open rule.
    Results: Defeated 4 to 6.
    Vote by Members: Diaz-Balart--Nay; Hastings (WA)--Nay; 
Sessions--Nay; Capito--Nay; Bishop--Nay; Slaughter--Yea; 
McGovern--Yea; Hastings (FL)--Yea; Matsui--Yea; Dreier--Nay.

Rules Committee record vote No. 253

    Date: September 28, 2006.
    Measure: H.R. 5825, Electronic Surveillance Modernization 
Act.
    Motion by: Mr. McGovern.
    Summary of motion: To make in order and provide the 
appropriate waivers for the amendment offered by Mr. 
Ruppersberger, which changes the time in which the NSA and FBI 
can conduct emergency electronic surveillance before the 
Attorney General submits an application to the FISA court from 
7 days to 14 days.
    Results: Defeated 4 to 6.
    Vote by Members: Diaz-Balart--Nay; Hastings (WA)--Nay; 
Sessions--Nay; Capito--Nay; Bishop--Nay; Slaughter--Yea; 
McGovern--Yea; Hastings (FL)--Yea; Matsui--Yea; Dreier--Nay.

Rules Committee record vote No. 254

    Date: September 28, 2006.
    Measure: H.R. 5825, Electronic Surveillance Modernization 
Act.
    Motion by: Mr. Hastings of Florida.
    Summary of motion: To make in order and provide the 
appropriate waivers for the amendment in the nature of a 
substitute offered by Mr. Schiff, which explicitly makes clear 
that foreign-to-foreign communications are outside of FISA and 
don't require a court order. Extends the FISA emergency 
exception from 72 hours to 7 days, permitting law enforcement 
to initiate surveillance in an emergency situation before going 
to the FISA court for a warrant. Expands the FISA ``wartime 
exception'' for purposes of allowing 15 days of warrantless 
surveillance if there is an explicit provision. Streamlines the 
FISA application process. Reiterates that FISA is the exclusive 
means by which domestic electronic surveillance for foreign 
intelligence purposes may be conducted, clarifies that the AUMF 
did not constitute an exception to that rule, and requires 
congressional oversight over the TSP and any other programs 
involving electronic surveillance of U.S. persons in the U.S.
    Results: Defeated 4 to 6.
    Vote by Members: Diaz-Balart--Nay; Hastings (WA)--Nay; 
Sessions--Nay; Capito--Nay; Bishop--Nay; Slaughter--Yea; 
McGovern--Yea; Hastings (FL)--Yea; Matsui--Yea; Dreier--Nay.

   SUMMARY OF AMENDMENT IN THE NATURE OF A SUBSTITUTE CONSIDERED AS 
                                ADOPTED

    Wilson, Heather (NM)/Sensenbrenner (WI)/Hoekstra (MI): 
Amends section 101 of the Foreign Intelligence Surveillance Act 
(FISA) to modify the definitions of ``agent of a foreign 
power'', ``electronic surveillance'', ``surveillance device'' 
and ``content'' under FISA. Updates the existing certification 
process under which the government may conduct electronic 
surveillance without court order of certain foreign powers or 
agents of foreign powers. Updates the section to make the 
language technology neutral. Provides a new and streamlined 
Attorney General certification process. Creates a process by 
which the information is to be obtained, a mechanism for the 
FISA Court review, and enforce the directives as well as 
challenges to the process. Amends section 104 of FISA to 
streamline the process and circumstances by which an 
application for a court order authorizing electronic 
surveillance for foreign intelligence purposes may be sought. 
Reduces the volume of material required for a FISA application. 
Amends section 105 of FISA covering the issuance of an order 
based on the application in section 104 of FISA. Modifies the 
issuance of order section to be consistent with the changes in 
the application process. Amends 50 U.S.C. 1805(f) that covers 
emergency orders to extend the period before a judge must be 
notified of an emergency employment of electronic surveillance 
from not more than 72 hours to not more than 168 hours (7 
days). Strikes the term ``radio'' in effort to make the statute 
technology neutral. Additionally section 106(i) of FISA directs 
the destruction of unintentionally acquired information, unless 
the contents indicate a threat of death or serious bodily harm 
to any person. The bill would add to the exception contents 
that contain significant foreign intelligence information. 
Requires additional information to be regularly reported to the 
intelligence committees regarding surveillance conducted 
without warrant. Provides authority to the Chairman of each of 
the Intelligence Committees to notify all members or any 
individual members of the Committees, on a bipartisan basis and 
as the Chair considers necessary, of reporting of intelligence 
activities received under the National Security Act. Provides 
that an order issued under this section shall remain in force 
during the authorized period of surveillance notwithstanding 
the absence of the target from the United States, unless the 
Government files a motion to extinguish the order and the court 
grants the motion. Limits the liability of telecommunications 
carriers for complying with any court order or government 
request in connection with any intelligence program designed to 
protect the United States from a terrorist attack. Requires 
reporting to Congress that would permit Congress to conduct 
efficient and appropriate oversight of the implementation of 
FISA modernization at NSA. Updates the current FISA provisions 
for electronic surveillance after a declaration of war and 
would provide clear authority for our intelligence agencies in 
the event of an armed attack on the United States. Governs 
electronic surveillance after a terrorist attack. Gives the 
President authority after a terrorist attack to authorize 
limited electronic surveillance to acquire foreign intelligence 
information without an order when the terrorist organizations 
and their affiliates responsible for the attack have been 
identified and notified to the Congress and the FISA court, 
when there is a reasonable belief that the target is 
communicating with a terrorist organization, for a period not 
to exceed 90 days following a terrorist attack against the U.S. 
Provides limits on the length of surveillance of particular 
U.S. persons. Allows the President to authorize limited 
electronic surveillance when there exists an imminent threat of 
attack likely to cause death, serious injury, or substantial 
economic damage to the United States when the entities and 
their affiliates responsible for the threat have been 
identified and notified to the Congress and the FISA court, 
when there is a reasonable belief that the target is 
communicating with those entities and affiliates, for a period 
not to exceed 90 days. Provides limits on the length of 
surveillance of particular U.S. persons. Makes technical and 
conforming changes.

 TEXT OF AMENDMENT IN THE NATURE OF A SUBSTITUTE CONSIDERED AS ADOPTED

    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Electronic Surveillance 
Modernization Act''.

SEC. 2. FISA DEFINITIONS.

  (a) Agent of a Foreign Power.--Subsection (b)(1) of section 
101 of the Foreign Intelligence Surveillance Act of 1978 (50 
U.S.C. 1801) is amended--
          (1) in subparagraph (B), by striking ``; or'' and 
        inserting ``;''; and
          (2) by adding at the end the following:
                  ``(D) is reasonably expected to possess, 
                control, transmit, or receive foreign 
                intelligence information while such person is 
                in the United States, provided that the 
                official making the certification required by 
                section 104(a)(7) deems such foreign 
                intelligence information to be significant; 
                or''.
  (b) Electronic Surveillance.--Subsection (f) of such section 
is amended to read as follows:
  ``(f) `Electronic surveillance' means--
          ``(1) the installation or use of an electronic, 
        mechanical, or other surveillance device for acquiring 
        information by intentionally directing surveillance at 
        a particular known person who is reasonably believed to 
        be in the United States under circumstances in which 
        that person has a reasonable expectation of privacy and 
        a warrant would be required for law enforcement 
        purposes; or
          ``(2) the intentional acquisition of the contents of 
        any communication under circumstances in which a person 
        has a reasonable expectation of privacy and a warrant 
        would be required for law enforcement purposes, if both 
        the sender and all intended recipients are reasonably 
        believed to be located within the United States.''.
  (c) Minimization Procedures.--Subsection (h) of such section 
is amended--
          (1) in paragraph (2), by striking ``importance;'' and 
        inserting ``importance; and'';
          (2) in paragraph (3), by striking ``; and'' and 
        inserting ``.''; and
          (3) by striking paragraph (4).
  (d) Wire Communication and Surveillance Device.--Subsection 
(l) of such section is amended to read as follows:
  ``(l) `Surveillance device' is a device that allows 
surveillance by the Federal Government, but excludes any device 
that extracts or analyzes information from data that has 
already been acquired by the Federal Government by lawful 
means.''.
  (e) Contents.--Subsection (n) of such section is amended to 
read as follows:
  ``(n) `Contents', when used with respect to a communication, 
includes any information concerning the substance, purport, or 
meaning of that communication.''.

SEC. 3. AUTHORIZATION FOR ELECTRONIC SURVEILLANCE AND OTHER 
                    ACQUISITIONS FOR FOREIGN INTELLIGENCE PURPOSES.

  (a) In General.--The Foreign Intelligence Surveillance Act of 
1978 (50 U.S.C. 1801 et seq.) is further amended by striking 
section 102 and inserting the following:

 ``AUTHORIZATION FOR ELECTRONIC SURVEILLANCE FOR FOREIGN INTELLIGENCE 
                                PURPOSES

  ``Sec. 102.  (a) In General.--Notwithstanding any other law, 
the President, acting through the Attorney General, may 
authorize electronic surveillance without a court order under 
this title to acquire foreign intelligence information for 
periods of up to one year if the Attorney General certifies in 
writing under oath that--
          ``(1) the electronic surveillance is directed at--
                  ``(A) the acquisition of the contents of 
                communications of foreign powers, as defined in 
                paragraph (1), (2), or (3) of section 101(a), 
                or an agent of a foreign power, as defined in 
                subparagraph (A) or (B) of section 101(b)(1); 
                or
                  ``(B) the acquisition of technical 
                intelligence, other than the spoken 
                communications of individuals, from property or 
                premises under the open and exclusive control 
                of a foreign power, as defined in paragraph 
                (1), (2), or (3) of section 101(a); and
          ``(2) the proposed minimization procedures with 
        respect to such surveillance meet the definition of 
        minimization procedures under section 101(h);
if the Attorney General reports such minimization procedures 
and any changes thereto to the Permanent Select Committee on 
Intelligence of the House of Representatives and the Select 
Committee on Intelligence of the Senate at least 30 days prior 
to the effective date of such minimization procedures, unless 
the Attorney General determines immediate action is required 
and notifies the committees immediately of such minimization 
procedures and the reason for their becoming effective 
immediately.
  ``(b) Minimization Procedures.--An electronic surveillance 
authorized by this subsection may be conducted only in 
accordance with the Attorney General's certification and the 
minimization procedures. The Attorney General shall assess 
compliance with such procedures and shall report such 
assessments to the Permanent Select Committee on Intelligence 
of the House of Representatives and the Select Committee on 
Intelligence of the Senate under the provisions of section 
108(a).
  ``(c) Submission of Certification.--The Attorney General 
shall immediately transmit under seal to the court established 
under section 103(a) a copy of his certification. Such 
certification shall be maintained under security measures 
established by the Chief Justice with the concurrence of the 
Attorney General, in consultation with the Director of National 
Intelligence, and shall remain sealed unless--
          ``(1) an application for a court order with respect 
        to the surveillance is made under section 104; or
          ``(2) the certification is necessary to determine the 
        legality of the surveillance under section 106(f).

  ``AUTHORIZATION FOR ACQUISITION OF FOREIGN INTELLIGENCE INFORMATION

  ``Sec. 102A.  (a) In General.--Notwithstanding any other law, 
the President, acting through the Attorney General may, for 
periods of up to one year, authorize the acquisition of foreign 
intelligence information concerning a person reasonably 
believed to be outside the United States if the Attorney 
General certifies in writing under oath that--
          ``(1) the acquisition does not constitute electronic 
        surveillance;
          ``(2) the acquisition involves obtaining the foreign 
        intelligence information from or with the assistance of 
        a wire or electronic communications service provider, 
        custodian, or other person (including any officer, 
        employee, agent, or other specified person of such 
        service provider, custodian, or other person) who has 
        access to wire or electronic communications, either as 
        they are transmitted or while they are stored, or 
        equipment that is being or may be used to transmit or 
        store such communications;
          ``(3) a significant purpose of the acquisition is to 
        obtain foreign intelligence information; and
          ``(4) the proposed minimization procedures with 
        respect to such acquisition activity meet the 
        definition of minimization procedures under section 
        101(h).
  ``(b) Specific Place Not Required.--A certification under 
subsection (a) is not required to identify the specific 
facilities, places, premises, or property at which the 
acquisition of foreign intelligence information will be 
directed.
  ``(c) Submission of Certification.--The Attorney General 
shall immediately transmit under seal to the court established 
under section 103(a) a copy of a certification made under 
subsection (a). Such certification shall be maintained under 
security measures established by the Chief Justice of the 
United States and the Attorney General, in consultation with 
the Director of National Intelligence, and shall remain sealed 
unless the certification is necessary to determine the legality 
of the acquisition under section 102B.
  ``(d) Minimization Procedures.--An acquisition under this 
section may be conducted only in accordance with the 
certification of the Attorney General and the minimization 
procedures adopted by the Attorney General. The Attorney 
General shall assess compliance with such procedures and shall 
report such assessments to the Permanent Select Committee on 
Intelligence of the House of Representatives and the Select 
Committee on Intelligence of the Senate under section 108(a).

``DIRECTIVES RELATING TO ELECTRONIC SURVEILLANCE AND OTHER ACQUISITIONS 
                  OF FOREIGN INTELLIGENCE INFORMATION

  ``Sec. 102B.  (a) Directive.--With respect to an 
authorization of electronic surveillance under section 102 or 
an authorization of an acquisition under section 102A, the 
Attorney General may direct a person to--
          ``(1) immediately provide the Government with all 
        information, facilities, and assistance necessary to 
        accomplish the acquisition of foreign intelligence 
        information in such a manner as will protect the 
        secrecy of the electronic surveillance or acquisition 
        and produce a minimum of interference with the services 
        that such person is providing to the target; and
          ``(2) maintain under security procedures approved by 
        the Attorney General and the Director of National 
        Intelligence any records concerning the electronic 
        surveillance or acquisition or the aid furnished that 
        such person wishes to maintain.
  ``(b) Compensation.--The Government shall compensate, at the 
prevailing rate, a person for providing information, 
facilities, or assistance pursuant to subsection (a).
  ``(c) Failure To Comply.--In the case of a failure to comply 
with a directive issued pursuant to subsection (a), the 
Attorney General may petition the court established under 
section 103(a) to compel compliance with the directive. The 
court shall issue an order requiring the person or entity to 
comply with the directive if it finds that the directive was 
issued in accordance with section 102(a) or 102A(a) and is 
otherwise lawful. Failure to obey an order of the court may be 
punished by the court as contempt of court. Any process under 
this section may be served in any judicial district in which 
the person or entity may be found.
  ``(d) Review of Petitions.--(1) In General.--(A) Challenge.--
A person receiving a directive issued pursuant to subsection 
(a) may challenge the legality of that directive by filing a 
petition with the pool established under section 103(e)(1).
  ``(B) Assignment of Judge.--The presiding judge designated 
pursuant to section 103(b) shall assign a petition filed under 
subparagraph (A) to one of the judges serving in the pool 
established by section 103(e)(1). Not later than 24 hours after 
the assignment of such petition, the assigned judge shall 
conduct an initial review of the directive. If the assigned 
judge determines that the petition is frivolous, the assigned 
judge shall deny the petition and affirm the directive or any 
part of the directive that is the subject of the petition. If 
the assigned judge determines the petition is not frivolous, 
the assigned judge shall, within 72 hours, consider the 
petition in accordance with the procedures established under 
section 103(e)(2) and provide a written statement for the 
record of the reasons for any determination under this 
subsection.
  ``(2) Standard of Review.--A judge considering a petition to 
modify or set aside a directive may grant such petition only if 
the judge finds that such 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 affirm such directive, and order the recipient to comply 
with such directive.
  ``(3) Directives Not Modified.--Any directive not explicitly 
modified or set aside under this subsection shall remain in 
full effect.
  ``(e) Appeals.--The Government or a person receiving a 
directive reviewed pursuant to subsection (d) may file a 
petition with the court of review established under section 
103(b) for review of the decision issued pursuant to subsection 
(d) not later than 7 days after the issuance of such decision. 
Such court of review shall have jurisdiction to consider such 
petitions and shall provide for the record a written statement 
of the reasons for its decision. On petition by the Government 
or any person receiving such directive for a writ of 
certiorari, the record shall be transmitted under seal to the 
Supreme Court, which shall have jurisdiction to review such 
decision.
  ``(f) Proceedings.--Judicial proceedings under this section 
shall be concluded as expeditiously as possible. The record of 
proceedings, including petitions filed, orders granted, and 
statements of reasons for decision, shall be maintained under 
security measures established by the Chief Justice of the 
United States, in consultation with the Attorney General and 
the Director of National Intelligence.
  ``(g) Sealed Petitions.--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.
  ``(h) Liability.--No cause of action shall lie in any court 
against any person for providing any information, facilities, 
or assistance in accordance with a directive under this 
section.
  ``(i) Use of Information.--Information acquired pursuant to a 
directive by the Attorney General under this section concerning 
any United States person may be used and disclosed by Federal 
officers and employees without the consent of the United States 
person only in accordance with the minimization procedures 
required by section 102(a) or 102A(a). No otherwise privileged 
communication obtained in accordance with, or in violation of, 
the provisions of this section shall lose its privileged 
character. No information from an electronic surveillance under 
section 102 or an acquisition pursuant to section 102A may be 
used or disclosed by Federal officers or employees except for 
lawful purposes.
  ``(j) Use in Law Enforcement.--No information acquired 
pursuant to this section shall be disclosed for law enforcement 
purposes unless such disclosure is accompanied by a statement 
that such information, or any information derived from such 
information, may only be used in a criminal proceeding with the 
advance authorization of the Attorney General.
  ``(k) Disclosure in Trial.--If the Government intends to 
enter into evidence or otherwise use or disclose in any trial, 
hearing, or other proceeding in or before any court, 
department, officer, agency, regulatory body, or other 
authority of the United States, against an aggrieved person, 
any information obtained or derived from an electronic 
surveillance conducted under section 102 or an acquisition 
authorized pursuant to section 102A, the Government shall, 
prior to the trial, hearing, or other proceeding or at a 
reasonable time prior to an effort to disclose or use that 
information or submit it in evidence, notify the aggrieved 
person and the court or other authority in which the 
information is to be disclosed or used that the Government 
intends to disclose or use such information.
  ``(l) Disclosure in State Trials.--If a State or political 
subdivision of a State intends to enter into evidence or 
otherwise use or disclose in any trial, hearing, or other 
proceeding in or before any court, department, officer, agency, 
regulatory body, or other authority of a State or a political 
subdivision of a State, against an aggrieved person, any 
information obtained or derived from an electronic surveillance 
authorized pursuant to section 102 or an acquisition authorized 
pursuant to section 102A, the State or political subdivision of 
such State shall notify the aggrieved person, the court, or 
other authority in which the information is to be disclosed or 
used and the Attorney General that the State or political 
subdivision intends to disclose or use such information.
  ``(m) Motion To Exclude Evidence.--(1) In General.--Any 
person against whom evidence obtained or derived from an 
electronic surveillance authorized pursuant to section 102 or 
an acquisition authorized pursuant to section 102A is to be, or 
has been, used or disclosed in any trial, hearing, or other 
proceeding in or before any court, department, officer, agency, 
regulatory body, or other authority of the United States, a 
State, or a political subdivision thereof, may move to suppress 
the evidence obtained or derived from such electronic 
surveillance or such acquisition on the grounds that--
          ``(A) the information was unlawfully acquired; or
          ``(B) the electronic surveillance or acquisition was 
        not properly made in conformity with an authorization 
        under section 102(a) or 102A(a).
  ``(2) Timing.--A person moving to suppress evidence under 
paragraph (1) shall make the motion to suppress the evidence 
before the trial, hearing, or other proceeding unless there was 
no opportunity to make such a motion or the person was not 
aware of the grounds of the motion.
  ``(n) Review of Motions.--If a court or other authority is 
notified pursuant to subsection (k) or (l), a motion is made 
pursuant to subsection (m), or a motion or request is made by 
an aggrieved person pursuant to any other statute or rule of 
the United States or any State before any court or other 
authority of the United States or any State--
          ``(1) to discover or obtain an Attorney General 
        directive or other materials relating to an electronic 
        surveillance authorized pursuant to section 102 or an 
        acquisition authorized pursuant to section 102A, or
          ``(2) to discover, obtain, or suppress evidence or 
        information obtained or derived from an electronic 
        surveillance authorized pursuant to section 102 or an 
        acquisition authorized pursuant to section 102A,
the United States district court or, where the motion is made 
before another authority, the United States district court in 
the same district as the authority, shall, notwithstanding any 
other law, if the Attorney General files an affidavit under 
oath that disclosure or an adversary hearing would harm the 
national security of the United States, review in camera and ex 
parte the application, order, and such other materials relating 
to such electronic surveillance or such acquisition as may be 
necessary to determine whether such electronic surveillance or 
such acquisition authorized under this section was lawfully 
authorized and conducted. In making this determination, the 
court may disclose to the aggrieved person, under appropriate 
security procedures and protective orders, portions of the 
directive or other materials relating to the acquisition only 
where such disclosure is necessary to make an accurate 
determination of the legality of the acquisition.
  ``(o) Determinations.--If, pursuant to subsection (n), a 
United States district court determines that the acquisition 
authorized under this section was not lawfully authorized or 
conducted, it shall, in accordance with the requirements of 
law, suppress the evidence which was unlawfully obtained or 
derived or otherwise grant the motion of the aggrieved person. 
If the court determines that such acquisition was lawfully 
authorized and conducted, it shall deny the motion of the 
aggrieved person except to the extent that due process requires 
discovery or disclosure.
  ``(p) Binding Orders.--Orders granting motions or requests 
under subsection (m), decisions under this section that an 
electronic surveillance or an acquisition was not lawfully 
authorized or conducted, and orders of the United States 
district court requiring review or granting disclosure of 
directives, orders, or other materials relating to such 
acquisition shall be final orders and binding upon all courts 
of the United States and the several States except a United 
States court of appeals and the Supreme Court.
  ``(q) Coordination.--(1) In General.--Federal officers who 
acquire foreign intelligence information may consult with 
Federal law enforcement officers or law enforcement personnel 
of a State or political subdivision of a State, including the 
chief executive officer of that State or political subdivision 
who has the authority to appoint or direct the chief law 
enforcement officer of that State or political subdivision, to 
coordinate efforts to investigate or protect against--
          ``(A) actual or potential attack or other grave 
        hostile acts of a foreign power or an agent of a 
        foreign power;
          ``(B) sabotage, international terrorism, or the 
        development or proliferation of weapons of mass 
        destruction by a foreign power or an agent of a foreign 
        power; or
          ``(C) clandestine intelligence activities by an 
        intelligence service or network of a foreign power or 
        by an agent of a foreign power.
  ``(2) Certification Required.--Coordination authorized under 
paragraph (1) shall not preclude the certification required by 
section 102(a) or 102A(a).
  ``(r) Retention of Directives and Orders.--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.''.
  (b) Table of Contents.--The table of contents in the first 
section of the Foreign Intelligence Surveillance Act of 1978 
(50 U.S.C. 1801 et seq.) is amended by inserting after the item 
relating to section 102 the following:
``102A. Authorization for acquisition of foreign intelligence 
          information.
``102B. Directives relating to electronic surveillance and other 
          acquisitions of foreign intelligence information.''.

SEC. 4. JURISDICTION OF FISA COURT.

  Section 103 of the Foreign Intelligence Surveillance Act of 
1978 (50 U.S.C. 1803) is amended by adding at the end the 
following new subsection:
  ``(g) Applications for a court order under this title are 
authorized if the President has, by written authorization, 
empowered the Attorney General to approve applications to the 
court having jurisdiction under this section, and a judge to 
whom an application is made may, notwithstanding any other law, 
grant an order, in conformity with section 105, approving 
electronic surveillance of a foreign power or an agent of a 
foreign power for the purpose of obtaining foreign intelligence 
information.''.

SEC. 5. 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) in paragraph (6), by striking ``detailed 
                description'' and inserting ``summary 
                description'';
                  (B) in paragraph (7)--
                          (i) in the matter preceding 
                        subparagraph (A), by striking ``or 
                        officials designated'' and all that 
                        follows through ``consent of the 
                        Senate'' and inserting ``designated by 
                        the President to authorize electronic 
                        surveillance for foreign intelligence 
                        purposes'';
                          (ii) in subparagraph (C), by striking 
                        ``techniques;'' and inserting 
                        ``techniques; and'';
                          (iii) by striking subparagraph (D); 
                        and
                          (iv) by redesignating subparagraph 
                        (E) as subparagraph (D);
                  (C) in paragraph (8), by striking ``a 
                statement of the means'' and inserting ``a 
                summary statement of the means'';
                  (D) in paragraph (9)--
                          (i) by striking ``a statement'' and 
                        inserting ``a summary statement''; and
                          (ii) by striking ``application;'' and 
                        inserting ``application; and'';
                  (E) in paragraph (10), by striking 
                ``thereafter; and'' and inserting 
                ``thereafter.''; and
                  (F) by striking paragraph (11).
          (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), by striking ``or the 
        Director of National Intelligence'' and inserting ``the 
        Director of National Intelligence, or the Director of 
        the Central Intelligence Agency''.

SEC. 6. 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 (c)(1)--
                  (A) in subparagraph (D), by striking 
                ``surveillance;'' and inserting ``surveillance; 
                and'';
                  (B) in subparagraph (E), by striking 
                ``approved; and'' and inserting ``approved.''; 
                and
                  (C) by striking subparagraph (F);
          (3) by striking subsection (d);
          (4) by redesignating subsections (e) through (i) as 
        subsections (d) through (h), respectively;
          (5) in subsection (d), as redesignated by paragraph 
        (4), by amending paragraph (2) to read as follows:
  ``(2) Extensions of an order issued under this title may be 
granted on the same basis as an original order upon an 
application for an extension and new findings made in the same 
manner as required for an original order and may be for a 
period not to exceed one year.'';
          (6) in subsection (e), as redesignated by paragraph 
        (4), to read as follows:
  ``(e) Notwithstanding any other provision of this title, the 
Attorney General may authorize the emergency employment of 
electronic surveillance if the Attorney General--
          ``(1) 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;
          ``(2) determines that the factual basis for issuance 
        of an order under this title to approve such electronic 
        surveillance exists;
          ``(3) informs 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
          ``(4) makes an application in accordance with this 
        title to a judge having jurisdiction under section 103 
        as soon as practicable, but not more than 168 hours 
        after the Attorney General authorizes such 
        surveillance.
If the Attorney General authorizes such emergency employment of 
electronic surveillance, the Attorney General shall require 
that the minimization procedures required by this title for the 
issuance of a judicial order be followed. 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. 
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. A denial of the 
application made under this subsection may be reviewed as 
provided in section 103.'';
          (7) in subsection (h), as redesignated by paragraph 
        (4)--
                  (A) by striking ``a wire or'' and inserting 
                ``an''; and
                  (B) by striking ``physical search'' and 
                inserting ``physical search or in response to a 
                certification by the Attorney General or a 
                designee of the Attorney General seeking 
                information, facilities, or technical 
                assistance from such person under section 
                102B''; and
          (8) by adding at the end the following new 
        subsection:
  ``(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, the judge shall also authorize the installation 
and use of pen registers and trap and trace devices to acquire 
dialing, routing, addressing, and signaling information related 
to such communications and such dialing, routing, addressing, 
and signaling information shall not be subject to minimization 
procedures.''.

SEC. 7. USE OF INFORMATION.

  Section 106(i) of the Foreign Intelligence Surveillance Act 
of 1978 (50 U.S.C. 1806(i)) is amended--
          (1) by striking ``radio communication'' and inserting 
        ``communication''; and
          (2) by striking ``contents indicates'' and inserting 
        ``contents contain significant foreign intelligence 
        information or indicate''.

SEC. 8. CONGRESSIONAL OVERSIGHT.

  (a) Electronic Surveillance Under FISA.--Section 108 of the 
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1808) 
is amended--
          (1) in subsection (a)(2)--
                  (A) in subparagraph (B), by striking ``and'' 
                at the end;
                  (B) in subparagraph (C), by striking the 
                period and inserting ``; and''; and
                  (C) by adding at the end the following new 
                subparagraph:
                  ``(D) the authority under which the 
                electronic surveillance is conducted.''; and
          (2) by striking subsection (b) and inserting the 
        following:
  ``(b) On a semiannual basis, the Attorney General 
additionally shall fully inform the Permanent Select Committee 
on Intelligence of the House of Representatives and the Select 
Committee on Intelligence of the Senate on electronic 
surveillance conducted without a court order.''.
  (b) Intelligence Activities.--The National Security Act of 
1947 (50 U.S.C. 401 et seq.) is amended--
          (1) in section 501 (50 U.S.C. 413)--
                  (A) by redesignating subsection (f) as 
                subsection (g); and
                  (B) by inserting after subsection (e) the 
                following new subsection:
  ``(f) The Chair of each of the congressional intelligence 
committees, in consultation with the ranking member of the 
committee for which the person is Chair, may inform--
          ``(1) on a bipartisan basis, all members or any 
        individual members of such committee, and
          ``(2) any essential staff of such committee,
of a report submitted under subsection (a)(1) or subsection (b) 
as such Chair considers necessary.'';
          (2) in section 502 (50 U.S.C. 414), by adding at the 
        end the following new subsection:
  ``(d) Informing of Committee Members.--The Chair of each of 
the congressional intelligence committees, in consultation with 
the ranking member of the committee for which the person is 
Chair, may inform--
          ``(1) on a bipartisan basis, all members or any 
        individual members of such committee, and
          ``(2) any essential staff of such committee,
of a report submitted under subsection (a) as such Chair 
considers necessary.''; and
          (3) in section 503 (50 U.S.C. 415), by adding at the 
        end the following new subsection:
  ``(g) The Chair of each of the congressional intelligence 
committees, in consultation with the ranking member of the 
committee for which the person is Chair, may inform--
          ``(1) on a bipartisan basis, all members or any 
        individual members of such committee, and
          ``(2) any essential staff of such committee,
of a report submitted under subsection (b), (c), or (d) as such 
Chair considers necessary.''.

SEC. 9. INTERNATIONAL MOVEMENT OF TARGETS.

  (a) Electronic Surveillance.--Section 105(d) of the Foreign 
Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(d)), as 
redesignated by section 6(4), is amended by adding at the end 
the following new paragraph:
          ``(4) An order issued under this section shall remain 
        in force during the authorized period of surveillance 
        notwithstanding the absence of the target from the 
        United States, unless the Government files a motion to 
        extinguish the order and the court grants the 
        motion.''.
  (b) Physical Search.--Section 304(d) of the Foreign 
Intelligence Surveillance Act of 1978 (50 U.S.C. 1824(d)) is 
amended by adding at the end the following new paragraph:
          ``(4) An order issued under this section shall remain 
        in force during the authorized period of surveillance 
        notwithstanding the absence of the target from the 
        United States, unless the Government files a motion to 
        extinguish the order and the court grants the 
        motion.''.

SEC. 10. COMPLIANCE WITH COURT ORDERS AND ANTITERRORISM PROGRAMS.

  (a) In General.--Notwithstanding any other provision of law, 
and in addition to the immunities, privileges, and defenses 
provided by any other provision of law, no action, claim, or 
proceeding shall lie or be maintained in any court, and no 
penalty, sanction, or other form of remedy or relief shall be 
imposed by any court or any other body, against any person for 
an activity arising from or relating to the provision to an 
element of the intelligence community of any information 
(including records or other information pertaining to a 
customer), facilities, or assistance during the period of time 
beginning on September 11, 2001, and ending on the date that is 
60 days after the date of the enactment of this Act, in 
connection with any alleged communications intelligence program 
that the Attorney General or a designee of the Attorney General 
certifies, in a manner consistent with the protection of State 
secrets, is, was, or would be intended to protect the United 
States from a terrorist attack. This section shall apply to all 
actions, claims, or proceedings pending on or after the 
effective date of this Act.
  (b) Jurisdiction.--Any action, claim, or proceeding described 
in subsection (a) that is brought in a State court shall be 
deemed to arise under the Constitution and laws of the United 
States and shall be removable pursuant to section 1441 of title 
28, United States Code.
  (c) Definitions.--In this section:
          (1) Intelligence community.--The term ``intelligence 
        community'' has the meaning given the term in section 
        3(4) of the National Security Act of 1947 (50 U.S.C. 
        401a(4)).
          (2) Person.--The term ``person'' has the meaning 
        given the term in section 2510(6) of title 18, United 
        States Code.

SEC. 11. REPORT ON MINIMIZATION PROCEDURES.

  (a) Report.--Not later than two years after the date of the 
enactment of this Act, and annually thereafter until December 
31, 2009, the Director of the National Security Agency, in 
consultation with the Director of National Intelligence and the 
Attorney General, shall submit to the Permanent Select 
Committee on Intelligence of the House of Representatives and 
the Select Committee on Intelligence of the Senate a report on 
the effectiveness and use of minimization procedures applied to 
information concerning United States persons acquired during 
the course of a communications activity conducted by the 
National Security Agency.
  (b) Requirements.--A report submitted under subsection (a) 
shall include--
          (1) a description of the implementation, during the 
        course of communications intelligence activities 
        conducted by the National Security Agency, of 
        procedures established to minimize the acquisition, 
        retention, and dissemination of nonpublicly available 
        information concerning United States persons;
          (2) the number of significant violations, if any, of 
        such minimization procedures during the 18 months 
        following the effective date of this Act; and
          (3) summary descriptions of such violations.
  (c) Retention of Information.--Information concerning United 
States persons shall not be retained solely for the purpose of 
complying with the reporting requirements of this section.

SEC. 12. AUTHORIZATION AFTER AN ARMED ATTACK.

  (a) Electronic Surveillance.--Section 111 of the Foreign 
Intelligence Surveillance Act of 1978 (50 U.S.C. 1811) is 
amended by striking ``for a period not to exceed'' and all that 
follows and inserting the following: ``for a period not to 
exceed 90 days following an armed attack against the territory 
of the United States if the President submits to the Permanent 
Select Committee on Intelligence of the House of 
Representatives and the Select Committee on Intelligence of the 
Senate notification of the authorization under this section.''.
  (b) Physical Search.--Section 309 of such Act (50 U.S.C. 
1829) is amended by striking ``for a period not to exceed'' and 
all that follows and inserting the following: ``for a period 
not to exceed 90 days following an armed attack against the 
territory of the United States if the President submits to the 
Permanent Select Committee on Intelligence of the House of 
Representatives and the Select Committee on Intelligence of the 
Senate notification of the authorization under this section.''.

SEC. 13. AUTHORIZATION OF ELECTRONIC SURVEILLANCE AFTER A TERRORIST 
                    ATTACK.

  The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
1801 et seq.) is further amended--
          (1) by adding at the end of title I the following new 
        section:

  ``AUTHORIZATION FOLLOWING A TERRORIST ATTACK UPON THE UNITED STATES

  ``Sec. 112.  (a) In General.--Notwithstanding any other 
provision of law, but subject to the provisions of this 
section, the President, acting through the Attorney General, 
may authorize electronic surveillance without an order under 
this title to acquire foreign intelligence information for a 
period not to exceed 90 days following a terrorist attack 
against the United States if the President submits a 
notification to the congressional intelligence committees and a 
judge having jurisdiction under section 103 that--
          ``(1) the United States has been the subject of a 
        terrorist attack; and
          ``(2) identifies the terrorist organizations or 
        affiliates of terrorist organizations believed to be 
        responsible for the terrorist attack.
  ``(b) Subsequent Certifications.--At the end of the 90-day 
period described in subsection (a), and every 90 days 
thereafter, the President may submit a subsequent certification 
to the congressional intelligence committees and a judge having 
jurisdiction under section 103 that the circumstances of the 
terrorist attack for which the President submitted a 
certification under subsection (a) require the President to 
continue the authorization of electronic surveillance under 
this section for an additional 90 days. The President shall be 
authorized to conduct electronic surveillance under this 
section for an additional 90 days after each such subsequent 
certification.
  ``(c) Electronic Surveillance of Individuals.--The President, 
or an official designated by the President to authorize 
electronic surveillance, may only conduct electronic 
surveillance of a person under this section if the President or 
such official determines that--
          ``(1) there is a reasonable belief that such person 
        is communicating with a terrorist organization or an 
        affiliate of a terrorist organization that is 
        reasonably believed to be responsible for the terrorist 
        attack; and
          ``(2) the information obtained from the electronic 
        surveillance may be foreign intelligence information.
  ``(d) Minimization Procedures.--The President may not 
authorize electronic surveillance under this section until the 
Attorney General approves minimization procedures for 
electronic surveillance conducted under this section.
  ``(e) United States Persons.--Notwithstanding subsection (a) 
or (b), the President may not authorize electronic surveillance 
of a United States person under this section without an order 
under this title for a period of more than 60 days unless the 
President, acting through the Attorney General, submits a 
certification to the congressional intelligence committees 
that--
          ``(1) the continued electronic surveillance of the 
        United States person is vital to the national security 
        of the United States;
          ``(2) describes the circumstances that have prevented 
        the Attorney General from obtaining an order under this 
        title for continued surveillance;
          ``(3) describes the reasons for believing the United 
        States person is affiliated with or in communication 
        with a terrorist organization or affiliate of a 
        terrorist organization that is reasonably believed to 
        be responsible for the terrorist attack; and
          ``(4) describes the foreign intelligence information 
        derived from the electronic surveillance conducted 
        under this section.
  ``(f) Use of Information.--Information obtained pursuant to 
electronic surveillance under this subsection may be used to 
obtain an order authorizing subsequent electronic surveillance 
under this title.
  ``(g) Reports.--Not later than 14 days after the date on 
which the President submits a certification under subsection 
(a), and every 30 days thereafter until the President ceases to 
authorize electronic surveillance under subsection (a) or (b), 
the President shall submit to the congressional intelligence 
committees a report on the electronic surveillance conducted 
under this section, including--
          ``(1) a description of each target of electronic 
        surveillance under this section; and
          ``(2) the basis for believing that each target is in 
        communication with a terrorist organization or an 
        affiliate of a terrorist organization.
  ``(h) Congressional Intelligence Committees Defined.--In this 
section, the term `congressional intelligence committees' means 
the Permanent Select Committee on Intelligence of the House of 
Representatives and the Select Committee on Intelligence of the 
Senate.''; and
          (2) in the table of contents in the first section, by 
        inserting after the item relating to section 111 the 
        following new item:
``Sec. 112. Authorization following a terrorist attack upon the United 
          States.''

SEC. 14. AUTHORIZATION OF ELECTRONIC SURVEILLANCE DUE TO IMMINENT 
                    THREAT.

  The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
1801 et seq.) is further amended--
          (1) by adding at the end of title I the following new 
        section:

                 ``AUTHORIZATION DUE TO IMMINENT THREAT

  ``Sec. 113.  (a) In General.--Notwithstanding any other 
provision of law, but subject to the provisions of this 
section, the President, acting through the Attorney General, 
may authorize electronic surveillance without an order under 
this title to acquire foreign intelligence information for a 
period not to exceed 90 days if the President submits to the 
congressional leadership, the congressional intelligence 
committees, and the Foreign Intelligence Surveillance Court a 
written notification that the President has determined that 
there exists an imminent threat of attack likely to cause 
death, serious injury, or substantial economic damage to the 
United States. Such notification--
          ``(1) shall be submitted as soon as practicable, but 
        in no case later than 5 days after the date on which 
        the President authorizes electronic surveillance under 
        this section;
          ``(2) shall specify the entity responsible for the 
        threat and any affiliates of the entity;
          ``(3) shall state the reason to believe that the 
        threat of imminent attack exists;
          ``(4) shall state the reason the President needs 
        broader authority to conduct electronic surveillance in 
        the United States as a result of the threat of imminent 
        attack;
          ``(5) shall include a description of the foreign 
        intelligence information that will be collected and the 
        means that will be used to collect such foreign 
        intelligence information; and
          ``(6) may be submitted in classified form.
  ``(b) Subsequent Certifications.--At the end of the 90-day 
period described in subsection (a), and every 90 days 
thereafter, the President may submit a subsequent written 
notification to the congressional leadership, the congressional 
intelligence committees, the other relevant committees, and the 
Foreign Intelligence Surveillance Court that the circumstances 
of the threat for which the President submitted a written 
notification under subsection (a) require the President to 
continue the authorization of electronic surveillance under 
this section for an additional 90 days. The President shall be 
authorized to conduct electronic surveillance under this 
section for an additional 90 days after each such subsequent 
written notification.
  ``(c) Electronic Surveillance of Individuals.--The President, 
or an official designated by the President to authorize 
electronic surveillance, may only conduct electronic 
surveillance of a person under this section if the President or 
such official determines that--
          ``(1) there is a reasonable belief that such person 
        is communicating with an entity or an affiliate of an 
        entity that is reasonably believed to be responsible 
        for imminent threat of attack; and
          ``(2) the information obtained from the electronic 
        surveillance may be foreign intelligence information.
  ``(d) Minimization Procedures.--The President may not 
authorize electronic surveillance under this section until the 
Attorney General approves minimization procedures for 
electronic surveillance conducted under this section.
  ``(e) United States Persons.--Notwithstanding subsections (a) 
and (b), the President may not authorize electronic 
surveillance of a United States person under this section 
without an order under this title for a period of more than 60 
days unless the President, acting through the Attorney General, 
submits a certification to the congressional intelligence 
committees that--
          ``(1) the continued electronic surveillance of the 
        United States person is vital to the national security 
        of the United States;
          ``(2) describes the circumstances that have prevented 
        the Attorney General from obtaining an order under this 
        title for continued surveillance;
          ``(3) describes the reasons for believing the United 
        States person is affiliated with or in communication 
        with an entity or an affiliate of an entity that is 
        reasonably believed to be responsible for imminent 
        threat of attack; and
          ``(4) describes the foreign intelligence information 
        derived from the electronic surveillance conducted 
        under this section.
  ``(f) Use of Information.--Information obtained pursuant to 
electronic surveillance under this subsection may be used to 
obtain an order authorizing subsequent electronic surveillance 
under this title.
  ``(g) Definitions.--In this section:
          ``(1) Congressional intelligence committees.--The 
        term `congressional intelligence committees' means the 
        Permanent Select Committee on Intelligence of the House 
        of Representatives and the Select Committee on 
        Intelligence of the Senate.
          ``(2) Congressional leadership.--The term 
        `congressional leadership' means the Speaker and 
        minority leader of the House of Representatives and the 
        majority leader and minority leader of the Senate.
          ``(3) Foreign intelligence surveillance court.--The 
        term `Foreign Intelligence Surveillance Court' means 
        the court established under section 103(a).
          ``(4) Other relevant committees.--The term `other 
        relevant committees' means the Committees on 
        Appropriations, the Committees on Armed Services, and 
        the Committees on the Judiciary of the House of 
        Representatives and the Senate.''; and
          (2) in the table of contents in the first section, by 
        inserting after the item relating to section 112, as 
        added by section 13(2), the following new item:
``Sec. 113. Authorization due to imminent threat.''.

SEC. 15. TECHNICAL AND CONFORMING AMENDMENTS.

  The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
1801 et seq.) is further amended--
          (1) in section 105(a)(4), as redesignated by section 
        6(1)(B)--
                  (A) by striking ``104(a)(7)(E)'' and 
                inserting ``104(a)(7)(D)''; and
                  (B) by striking ``104(d)'' and inserting 
                ``104(c)'';
          (2) in section 106(j), in the matter preceding 
        paragraph (1), by striking ``105(e)'' and inserting 
        ``105(d)''; and
          (3) in section 108(a)(2)(C), by striking ``105(f)'' 
        and inserting ``105(e)''.

                                  
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