[House Report 110-373]
[From the U.S. Government Publishing Office]



110th Congress                                            Rept. 110-373
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     Part 1

======================================================================
 
  RESPONSIBLE ELECTRONIC SURVEILLANCE THAT IS OVERSEEN, REVIEWED, AND 
              EFFECTIVE ACT OF 2007 OR RESTORE ACT OF 2007

                                _______
                                

October 12, 2007.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

    Mr. Conyers, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 3773]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on the Judiciary, to whom was referred the bill 
(H.R. 3773) to amend the Foreign Intelligence Surveillance Act 
of 1978 to establish a procedure for authorizing certain 
acquisitions of foreign intelligence, and for other purposes, 
having considered the same, report favorably thereon with an 
amendment and recommend that the bill as amended do pass.

                                CONTENTS

                                                                   Page
Amendment........................................................     2
Purpose and Summary..............................................     8
Background and Need for the Legislation..........................     8
Hearings.........................................................    20
Committee Consideration..........................................    20
Committee Votes..................................................    20
Committee Oversight Findings.....................................    24
New Budget Authority and Tax Expenditures........................    24
Congressional Budget Office Cost Estimate........................    24
Performance Goals and Objectives.................................    27
Constitutional Authority Statement...............................    27
Advisory on Earmarks.............................................    27
Section-by-Section Analysis......................................    28
Changes in Existing Law Made by the Bill, as Reported............    32
Dissenting Views.................................................    44

                             The Amendment

  The amendment 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 ``Responsible 
Electronic Surveillance That is Overseen, Reviewed, and Effective Act 
of 2007'' or ``RESTORE Act of 2007''.
  (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Clarification of electronic surveillance of non-United States 
persons outside the United States.
Sec. 3. Procedure for authorizing acquisitions of communications of 
non-United States persons located outside the United States.
Sec. 4. Emergency authorization of acquisitions of communications of 
non-United States persons located outside the United States.
Sec. 5. Oversight of acquisitions of communications of non-United 
States persons located outside of the United States.
Sec. 6. Foreign Intelligence Surveillance Court en banc.
Sec. 7. Audit of warrantless surveillance programs.
Sec. 8. Record-keeping system on acquisition of communications of 
United States persons.
Sec. 9. Authorization for increased resources relating to foreign 
intelligence surveillance.
Sec. 10. Reiteration of FISA as the exclusive means by which electronic 
surveillance may be conducted for gathering foreign intelligence 
information.
Sec. 11. Technical and conforming amendments.
Sec. 12. Sunset; transition procedures.

SEC. 2. CLARIFICATION OF ELECTRONIC SURVEILLANCE OF NON-UNITED STATES 
                    PERSONS OUTSIDE THE UNITED STATES.

  Section 105A of the Foreign Intelligence Surveillance Act of 1978 (50 
U.S.C. 1801 et seq.) is amended to read as follows:
``clarification of electronic surveillance of non-united states persons 
                       outside the united states
  ``Sec. 105A.  (a) Foreign to Foreign Communications.--Notwithstanding 
any other provision of this Act, a court order is not required for the 
acquisition of the contents of any communication between persons that 
are not United States persons and are not located within the United 
States for the purpose of collecting foreign intelligence information, 
without respect to whether the communication passes through the United 
States or the surveillance device is located within the United States.
  ``(b) Communications of Non-United States Persons Outside of the 
United States.--Notwithstanding any other provision of this Act other 
than subsection (a), electronic surveillance that is directed at the 
acquisition of the communications of a person that is reasonably 
believed to be located outside the United States and not a United 
States person for the purpose of collecting foreign intelligence 
information (as defined in paragraph (1) or (2)(A) of section 101(e)) 
by targeting that person shall be conducted pursuant to--
          ``(1) an order approved in accordance with section 105 or 
        105B; or
          ``(2) an emergency authorization in accordance with section 
        105 or 105C.''.

SEC. 3. PROCEDURE FOR AUTHORIZING ACQUISITIONS OF COMMUNICATIONS OF 
                    NON-UNITED STATES PERSONS LOCATED OUTSIDE THE 
                    UNITED STATES.

  Section 105B of the Foreign Intelligence Surveillance Act of 1978 (50 
U.S.C. 1801 et seq.) is amended to read as follows:
   ``procedure for authorizing acquisitions of communications of non-
        united states persons located outside the united states
  ``Sec. 105B.  (a) In General.--Notwithstanding any other provision of 
this Act, the Director of National Intelligence and the Attorney 
General may jointly apply to a judge of the court established under 
section 103(a) for an ex parte order, or the extension of an order, 
authorizing for a period of up to one year the acquisition of 
communications of persons that are reasonably believed to be located 
outside the United States and not United States persons for the purpose 
of collecting foreign intelligence information (as defined in paragraph 
(1) or (2)(A) of section 101(e)) by targeting those persons.
  ``(b) Application Inclusions.--An application under subsection (a) 
shall include--
          ``(1) a certification by the Director of National 
        Intelligence and the Attorney General that--
                  ``(A) the targets of the acquisition of foreign 
                intelligence information under this section are persons 
                reasonably believed to be located outside the United 
                States;
                  ``(B) the targets of the acquisition are reasonably 
                believed to be persons that are not United States 
                persons;
                  ``(C) the acquisition involves obtaining the foreign 
                intelligence information from, or with the assistance 
                of, a communications service provider or custodian, or 
                an officer, employee, or agent of such service provider 
                or custodian, who has authorized access to the 
                communications to be acquired, 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; and
                  ``(D) a significant purpose of the acquisition is to 
                obtain foreign intelligence information (as defined in 
                paragraph (1) or (2)(A) of section 101(e)); and
          ``(2) a description of--
                  ``(A) the procedures that will be used by the 
                Director of National Intelligence and the Attorney 
                General during the duration of the order to determine 
                that there is a reasonable belief that the targets of 
                the acquisition are persons that are located outside 
                the United States and not United States persons;
                  ``(B) the nature of the information sought, including 
                the identity of any foreign power against whom the 
                acquisition will be directed;
                  ``(C) minimization procedures that meet the 
                definition of minimization procedures under section 
                101(h) to be used with respect to such acquisition; and
                  ``(D) the guidelines that will be used to ensure that 
                an application is filed under section 104, if otherwise 
                required by this Act, when a significant purpose of an 
                acquisition is to acquire the communications of a 
                specific person reasonably believed to be located in 
                the United States.
  ``(c) Specific Place Not Required.--An application 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.
  ``(d) Review of Application.--Not later than 15 days after a judge 
receives an application under subsection (a), the judge shall review 
such application and shall approve the application if the judge finds 
that--
          ``(1) the proposed procedures referred to in subsection 
        (b)(2)(A) are reasonably designed to determine whether the 
        targets of the acquisition are located outside the United 
        States and not United States persons;
          ``(2) the proposed minimization procedures referred to in 
        subsection (b)(2)(C) meet the definition of minimization 
        procedures under section 101(h); and
          ``(3) the guidelines referred to in subsection (b)(2)(D) are 
        reasonably designed to ensure that an application is filed 
        under section 104, if otherwise required by this Act, when a 
        significant purpose of an acquisition is to acquire the 
        communications of a specific person reasonably believed to be 
        located in the United States.
  ``(e) Order.--
          ``(1) In general.--A judge approving an application under 
        subsection (d) shall issue an order--
                  ``(A) authorizing the acquisition of the contents of 
                the communications as requested, or as modified by the 
                judge;
                  ``(B) requiring the communications service provider 
                or custodian, or officer, employee, or agent of such 
                service provider or custodian, who has authorized 
                access to the information, facilities, or technical 
                assistance necessary to accomplish the acquisition to 
                provide such information, facilities, or technical 
                assistance necessary to accomplish the acquisition and 
                to produce a minimum of interference with the services 
                that provider, custodian, officer, employee, or agent 
                is providing the target of the acquisition;
                  ``(C) requiring such communications service provider, 
                custodian, officer, employee, or agent, upon the 
                request of the applicant, to maintain under security 
                procedures approved by the Attorney General and the 
                Director of National Intelligence any records 
                concerning the acquisition or the aid furnished;
                  ``(D) directing the Federal Government to--
                          ``(i) compensate, at the prevailing rate, a 
                        person for providing information, facilities, 
                        or assistance pursuant to such order; and
                          ``(ii) provide a copy of the portion of the 
                        order directing the person to comply with the 
                        order to such person; and
                  ``(E) directing the applicant to follow--
                          ``(i) the procedures referred to in 
                        subsection (b)(2)(A) as proposed or as modified 
                        by the judge;
                          ``(ii) the minimization procedures referred 
                        to in subsection (b)(2)(C) as proposed or as 
                        modified by the judge; and
                          ``(iii) the guidelines referred to in 
                        subsection (b)(2)(D) as proposed or as modified 
                        by the judge.
          ``(2) Failure to comply.--If a person fails to comply with an 
        order issued under paragraph (1), the Attorney General may 
        invoke the aid of the court established under section 103(a) to 
        compel compliance with the order. 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 may be found.
          ``(3) Liability of order.--Notwithstanding any other law, no 
        cause of action shall lie in any court against any person for 
        providing any information, facilities, or assistance in 
        accordance with an order issued under this subsection.
          ``(4) Retention of order.--The Director of National 
        Intelligence and the court established under subsection 103(a) 
        shall retain an order issued under this section for a period of 
        not less than 10 years from the date on which such order is 
        issued.
          ``(5) Assessment of compliance with court order.--At or 
        before the end of the period of time for which an acquisition 
        is approved by an order or an extension under this section, the 
        judge shall assess compliance with the procedures and 
        guidelines referred to in paragraph (1)(E) and review the 
        circumstances under which information concerning United States 
        persons was acquired, retained, or disseminated.''.

SEC. 4. EMERGENCY AUTHORIZATION OF ACQUISITIONS OF COMMUNICATIONS OF 
                    NON-UNITED STATES PERSONS LOCATED OUTSIDE THE 
                    UNITED STATES.

  Section 105C of the Foreign Intelligence Surveillance Act of 1978 (50 
U.S.C. 1801 et seq.) is amended to read as follows:
  ``emergency authorization of acquisitions of communications of non-
        united states persons located outside the united states
  ``Sec. 105C.  (a) Application After Emergency Authorization.--As soon 
as is practicable, but not more than 7 days after the Director of 
National Intelligence and the Attorney General authorize an acquisition 
under this section, an application for an order authorizing the 
acquisition in accordance with section 105B shall be submitted to the 
judge referred to in subsection (b)(2) of this section for approval of 
the acquisition in accordance with section 105B.
  ``(b) Emergency Authorization.--Notwithstanding any other provision 
of this Act, the Director of National Intelligence and the Attorney 
General may jointly authorize the emergency acquisition of foreign 
intelligence information for a period of not more than 45 days if--
          ``(1) the Director of National Intelligence and the Attorney 
        General jointly determine that--
                  ``(A) an emergency situation exists with respect to 
                an authorization for an acquisition under section 105B 
                before an order approving the acquisition under such 
                section can with due diligence be obtained;
                  ``(B) the targets of the acquisition of foreign 
                intelligence information under this section are persons 
                reasonably believed to be located outside the United 
                States;
                  ``(C) the targets of the acquisition are reasonably 
                believed to be persons that are not United States 
                persons;
                  ``(D) there are reasonable procedures in place for 
                determining that the acquisition of foreign 
                intelligence information under this section will be 
                acquired by targeting only persons that are reasonably 
                believed to be located outside the United States and 
                not United States persons;
                  ``(E) the acquisition involves obtaining the foreign 
                intelligence information from, or with the assistance 
                of, a communications service provider or custodian, or 
                an officer, employee, or agent of such service provider 
                or custodian, who has authorized access to the 
                communications to be acquired, 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;
                  ``(F) a significant purpose of the acquisition is to 
                obtain foreign intelligence information (as defined in 
                paragraph (1) or (2)(A) of section 101(e));
                  ``(G) minimization procedures to be used with respect 
                to such acquisition activity meet the definition of 
                minimization procedures under section 101(h); and
                  ``(H) there are guidelines that will be used to 
                ensure that an application is filed under section 104, 
                if otherwise required by this Act, when a significant 
                purpose of an acquisition is to acquire the 
                communications of a specific person reasonably believed 
                to be located in the United States; and
          ``(2) the Director of National Intelligence and the Attorney 
        General, or their designees, inform a judge having jurisdiction 
        to approve an acquisition under section 105B at the time of the 
        authorization under this section that the decision has been 
        made to acquire foreign intelligence information.
  ``(c) Information, Facilities, and Technical Assistance.--Pursuant to 
an authorization of an acquisition under this section, the Attorney 
General may direct a communications service provider, custodian, or an 
officer, employee, or agent of such service provider or custodian, who 
has the lawful authority to access the information, facilities, or 
technical assistance necessary to accomplish such acquisition to--
          ``(1) furnish the Attorney General forthwith with such 
        information, facilities, or technical assistance in a manner 
        that will protect the secrecy of the acquisition and produce a 
        minimum of interference with the services that provider, 
        custodian, officer, employee, or agent is providing the target 
        of the acquisition; and
          ``(2) maintain under security procedures approved by the 
        Attorney General and the Director of National Intelligence any 
        records concerning the acquisition or the aid furnished.''.

SEC. 5. OVERSIGHT OF ACQUISITIONS OF COMMUNICATIONS OF NON-UNITED 
                    STATES PERSONS LOCATED OUTSIDE OF THE UNITED 
                    STATES.

  The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et 
seq.) is amended by inserting after section 105C the following new 
section:
  ``oversight of acquisitions of communications of non-united states 
              persons located outside of the united states
  ``Sec. 105D.  (a) Application; Procedures; Orders.--Not later than 7 
days after an application is submitted under section 105B(a) or an 
order is issued under section 105B(e), the Director of National 
Intelligence and the Attorney General shall submit to the appropriate 
committees of Congress--
          ``(1) in the case of an application--
                  ``(A) a copy of the application, including the 
                certification made under section 105B(b)(1); and
                  ``(B) a description of the primary purpose of the 
                acquisition for which the application is submitted; and
          ``(2) in the case of an order, a copy of the order, including 
        the procedures and guidelines referred to in section 
        105B(e)(1)(E).
  ``(b) Quarterly Audits.--
          ``(1) Audit.--Not later than 120 days after the date of the 
        enactment of this section, and every 120 days thereafter until 
        the expiration of all orders issued under section 105B, the 
        Inspector General of the Department of Justice shall complete 
        an audit on the implementation of and compliance with the 
        procedures and guidelines referred to in section 105B(e)(1)(E) 
        and shall submit to the appropriate committees of Congress, the 
        Attorney General, the Director of National Intelligence, and 
        the court established under section 103(a) the results of such 
        audit, including, for each order authorizing the acquisition of 
        foreign intelligence under section 105B--
                  ``(A) the number of targets of an acquisition under 
                such order that were later determined to be located in 
                the United States;
                  ``(B) the number of persons located in the United 
                States whose communications have been acquired under 
                such order;
                  ``(C) the number and nature of reports disseminated 
                containing information on a United States person that 
                was collected under such order; and
                  ``(D) the number of applications submitted for 
                approval of electronic surveillance under section 104 
                for targets whose communications were acquired under 
                such order.
          ``(2) Report.--Not later than 30 days after the completion of 
        an audit under paragraph (1), the Attorney General shall submit 
        to the appropriate committees of Congress and the court 
        established under section 103(a) a report containing the 
        results of such audit.
  ``(c) Compliance Reports.--Not later than 60 days after the date of 
the enactment of this section, and every 120 days thereafter until the 
expiration of all orders issued under section 105B, the Director of 
National Intelligence and the Attorney General shall submit to the 
appropriate committees of Congress and the court established under 
section 103(a) a report concerning acquisitions under section 105B 
during the previous 120-day period. Each report submitted under this 
section shall include a description of any incidents of non-compliance 
with an order issued under section 105B(e), including incidents of non-
compliance by--
          ``(1) an element of the intelligence community with 
        minimization procedures referred to in section 
        105B(e)(1)(E)(i);
          ``(2) an element of the intelligence community with 
        procedures referred to in section 105B(e)(1)(E)(ii);
          ``(3) an element of the intelligence community with 
        guidelines referred to in section 105B(e)(1)(E)(iii); and
          ``(4) a person directed to provide information, facilities, 
        or technical assistance under such order.
  ``(d) Report on Emergency Authority.--The Director of National 
Intelligence and the Attorney General shall annually submit to the 
appropriate committees of Congress a report containing the number of 
emergency authorizations of acquisitions under section 105C and a 
description of any incidents of non-compliance with an emergency 
authorization under such section.
  ``(e) Appropriate Committees of Congress Defined.--In this section, 
the term `appropriate committees of Congress' means--
          ``(1) the Permanent Select Committee on Intelligence of the 
        House of Representatives;
          ``(2) the Select Committee on Intelligence of the Senate; and
          ``(3) the Committees on the Judiciary of the House of 
        Representatives and the Senate.''.

SEC. 6. FOREIGN INTELLIGENCE SURVEILLANCE COURT EN BANC.

  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) In any case where the court established under subsection (a) or 
a judge of such court is required to review a matter under this Act, 
the court may, at the discretion of the court, sit en banc to review 
such matter and issue any orders related to such matter.''.

SEC. 7. AUDIT OF WARRANTLESS SURVEILLANCE PROGRAMS.

  (a) Audit.--Not later than 180 days after the date of the enactment 
of this Act, the Inspector General of the Department of Justice shall 
complete an audit of all programs of the Federal Government involving 
the acquisition of communications conducted without a court order on or 
after September 11, 2001, including the Terrorist Surveillance Program 
referred to by the President in a radio address on December 17, 2005. 
Such audit 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.
  (b) Report.--
          (1) In general.--Not later than 30 days after the completion 
        of the audit under subsection (a), the Inspector 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 report containing the results of 
        such audit, including all documents acquired pursuant to 
        conducting such audit.
          (2) Form.--The report under paragraph (1) shall be submitted 
        in unclassified form, but may include a classified annex.
  (c) Expedited Security Clearance.--The Director of National 
Intelligence shall ensure that the process for the investigation and 
adjudication of an application by the Inspector General or the 
appropriate staff of the Office of the Inspector General of the 
Department of Justice for a security clearance necessary for the 
conduct of the audit under subsection (a) is conducted as expeditiously 
as possible.

SEC. 8. RECORD-KEEPING SYSTEM ON ACQUISITION OF COMMUNICATIONS OF 
                    UNITED STATES PERSONS.

  (a) Record-Keeping System.--The Director of National Intelligence and 
the Attorney General shall jointly develop and maintain a record-
keeping system that will keep track of--
          (1) the instances where the identity of a United States 
        person whose communications were acquired was disclosed by an 
        element of the intelligence community (as defined in section 
        3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4))) 
        that collected the communications to other departments or 
        agencies of the United States; and
          (2) the departments and agencies of the Federal Government 
        and persons to whom such identity information was disclosed.
  (b) Report.--The Director of National Intelligence and the Attorney 
General shall annually 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 on the record-keeping 
system created under subsection (a), including the number of instances 
referred to in paragraph (1).

SEC. 9. AUTHORIZATION FOR INCREASED RESOURCES RELATING TO FOREIGN 
                    INTELLIGENCE SURVEILLANCE.

  There are authorized to be appropriated the Department of Justice, 
for the activities of the Office of the Inspector General, the Office 
of Intelligence Policy and Review, and other appropriate elements of 
the National Security Division, and the National Security Agency such 
sums as may be necessary to meet the personnel and information 
technology demands to ensure the timely and efficient processing of--
          (1) applications and other submissions to the court 
        established under section 103(a) of the Foreign Intelligence 
        Surveillance Act of 1978 (50 U.S.C. 1803(a));
          (2) the audit and reporting requirements under--
                  (A) section 105D of such Act; and
                  (B) section 7; and
          (3) the record-keeping system and reporting requirements 
        under section 8.

SEC. 10. REITERATION OF FISA AS THE EXCLUSIVE MEANS BY WHICH ELECTRONIC 
                    SURVEILLANCE MAY BE CONDUCTED FOR GATHERING FOREIGN 
                    INTELLIGENCE INFORMATION.

  (a) Exclusive Means.--Notwithstanding any other provision of law, the 
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) 
shall be the exclusive means by which electronic surveillance may be 
conducted for the purpose of gathering foreign intelligence 
information.
  (b) Specific Authorization Required for Exception.--Subsection (a) 
shall apply until specific statutory authorization for electronic 
surveillance, other than as an amendment to the Foreign Intelligence 
Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), is enacted. Such 
specific statutory authorization shall be the only exception to 
subsection (a).

SEC. 11. TECHNICAL AND CONFORMING AMENDMENTS.

  (a) 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 and inserting the following new items:

``Sec. 105A. Clarification of electronic surveillance of non-United 
States persons outside the United States.
``Sec. 105B. Procedure for authorizing acquisitions of communications 
of non-United States persons located outside the United States.
``Sec. 105C. Emergency authorization of acquisitions of communications 
of non-United States persons located outside the United States.
``Sec. 105D. Oversight of acquisitions of communications of non-United 
States persons located outside of the United States.''.
  (b) Section 103(e) of FISA.--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''; and
          (2) in paragraph (2), by striking ``105B(h) or''.
  (c) Repeal of Certain Provisions of the Protect America Act of 
2007.--Sections 4 and 6 of the Protect America Act of 2007 (Public Law 
110-55) are hereby repealed.

SEC. 12. SUNSET; TRANSITION PROCEDURES.

  (a) Sunset of New Provisions.--
          (1) In general.--Except as provided in paragraph (2), 
        effective on December 31, 2009--
                  (A) sections 105A, 105B, 105C, and 105D of the 
                Foreign Intelligence Surveillance Act of 1978 (50 
                U.S.C. 1801 et seq.) are hereby repealed; and
                  (B) the table of contents in the first section of 
                such Act is amended by striking the items relating to 
                sections 105A, 105B, 105C, and 105D.
          (2) Acquisitions authorized prior to sunset.--Any 
        authorization or order issued under section 105B of the Foreign 
        Intelligence Surveillance Act of 1978, as amended by this Act, 
        in effect on December 31, 2009, shall continue in effect until 
        the date of the expiration of such authorization or order.
  (b) Acquisitions Authorized Prior to Enactment.--
          (1) Effect.--Notwithstanding the amendments made by this Act, 
        an authorization of the acquisition of foreign intelligence 
        information under section 105B of the Foreign Intelligence 
        Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) made before 
        the date of the enactment of this Act shall remain in effect 
        until the date of the expiration of such authorization or the 
        date that is 180 days after such date of enactment, whichever 
        is earlier.
          (2) Report.--Not later than 30 days after the date of the 
        expiration of all authorizations of acquisition of foreign 
        intelligence information under section 105B of the Foreign 
        Intelligence Surveillance Act of 1978 (as added by Public Law 
        110-55) made before the date of the enactment of this Act in 
        accordance with paragraph (1), the Director of National 
        Intelligence and the Attorney 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 report on such authorizations, including--
                  (A) the number of targets of an acquisition under 
                section 105B of such Act (as in effect on the day 
                before the date of the enactment of this Act) that were 
                later determined to be located in the United States;
                  (B) the number of persons located in the United 
                States whose communications have been acquired under 
                such section;
                  (C) the number of reports disseminated containing 
                information on a United States person that was 
                collected under such section;
                  (D) the number of applications submitted for approval 
                of electronic surveillance under section 104 of such 
                Act based upon information collected pursuant to an 
                acquisition authorized under section 105B of such Act 
                (as in effect on the day before the date of the 
                enactment of this Act); and
                  (E) a description of any incidents of non-compliance 
                with an authorization under such section, including 
                incidents of non-compliance by--
                          (i) an element of the intelligence community 
                        with procedures referred to in subsection 
                        (a)(1) of such section;
                          (ii) an element of the intelligence community 
                        with minimization procedures referred to in 
                        subsection (a)(5) of such section; and
                          (iii) a person directed to provide 
                        information, facilities, or technical 
                        assistance under subsection (e) of such 
                        section.
          (3) Intelligence community defined.--In this subsection, 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)).

                          Purpose and Summary

    H.R. 3773, the ``Responsible Electronic Surveillance That 
is Overseen, Reviewed, and Effective Act of 2007'' (RESTORE Act 
of 2007) would provide a mechanism, through December 2009, to 
conduct foreign electronic surveillance for the purpose of 
defense against terrorism and other national security threats, 
without the need for individual warrants for overseas targets, 
while protecting the civil liberties of Americans whose 
communications may be intercepted in the process. It would also 
require increased accountability through data collection, 
auditing, and mandatory reporting to Congress. And it would 
provide additional resources for the National Security Agency 
and Department of Justice to ensure that there are no backlogs 
of critical intelligence gathering.
    Importantly, it removes any ``foreign-to-foreign'' 
ambiguity by making it clear that purely foreign communications 
do not require a court order even when they transit the U.S. or 
the acquisition is in the United States as a result of changes 
in communications technology since FISA was first enacted. 
Through this approach, the RESTORE Act specifically prevents 
the extension of any Fourth Amendment or statutory protections 
to overseas targets such as Osama Bin Laden or other members of 
terrorist organizations.

                Background and Need for the Legislation

    On August 5, 2007 the President signed into law the 
``Protect America Act'' \1\ (``PAA''), which enacted short-term 
revisions to the Foreign Intelligence Surveillance Act \2\ 
(``FISA'') and exempted large portions of foreign intelligence 
surveillance from court review. Section 6 of the PAA provides 
that it sunsets in February 2008. The RESTORE Act replaces the 
PAA, extending the ability of the government to acquire 
communications of persons abroad for the purpose of terrorism 
and other national security threats, but in a manner that 
responds to concerns that the PAA lacked sufficient judicial 
safeguards for Americans' phone calls, e-mails, and other 
communications.
---------------------------------------------------------------------------
    \1\ Pub. L. No. 110-55.
    \2\ 50 U.S.C. Sec. 1801 et seq.
---------------------------------------------------------------------------
    The Foreign Intelligence Surveillance Act and Protect 
America Act Enacted in 1978 in the wake of revelations of 
widespread intelligence-gathering abuses, FISA established the 
exclusive means by which the Government conducts surveillance 
of Americans \3\ for the purpose of gathering foreign 
intelligence. Under FISA as structured before the Protect 
America Act altered it (hereinafter, ``traditional FISA''), the 
Government typically must seek an order from the FISA court 
before conducting electronic surveillance of Americans for 
foreign intelligence information. This order is sometimes 
referred to as a FISA ``warrant.''
---------------------------------------------------------------------------
    \3\ FISA defines the term ``United States persons'' to include not 
only American citizens, but lawfully admitted aliens and other narrow 
classes. See 18 U.S.C. Sec. 1801(i).
---------------------------------------------------------------------------

                 THE ``TERRORIST SURVEILLANCE PROGRAM''

    Since September 11, 2001, the Administration has engaged in 
various warrantless surveillance programs. Following 
revelations of the existence of such programs in 2005,\4\ the 
President has admitted to at least portions of the programs, 
sometimes referred to as the Terrorist Surveillance Program 
(``TSP'') \5\. An oversight hearing into these programs was 
held by the Subcommittee on the Constitution. Civil Rights and 
Civil Liberties on June 7, 2007. Additional revelations about 
these surveillance programs have been obtained through the 
congressional oversight of U.S. Attorney firings and related 
Committee oversight of the Justice Department. The 
Administration turned to an extra-legal surveillance program 
despite emergency procedures available under existing law and 
the fact that it is incredibly rare for the FISA Court to ever 
turn down a request for a warrant.\6\
---------------------------------------------------------------------------
    \4\ James Risen and Eric Liehtblau, ``Bush Lets U.S. Spy on Callers 
Without Courts'' New York Times, December 16, 2005 at A1.
    \5\ President Bush's Radio Address, Dec. 17, 2005, available at 
http://www/whitehouse.gov.news/releases/2005/12/20051217.html). The 
term ``terrorist surveillance program'' was used by then-Attorney 
General Gonzalez in February 2006. See Prepared Statement of Hon. 
Alberto R. Gonzales, Attorney General of the United States, available 
at http://www.usdoj.gov/ag/speeches/2006/ag_speech_060206.html. In an 
August 2007 letter, Attorney General Gonzales stated, ``[B]efore 
December 2005, the term `Terrorist Surveillance Program' was not used 
to refer to these activities, collectively or otherwise. It was only in 
early 2006, as part of the public debate that followed the unauthorized 
disclosure and the President's acknowledgment of one aspect of the NSA 
activities, that the term Terrorist Surveillance Program was first 
used.'' Letter from Attorney General Alberto Gonzales to Senator 
Patrick J. Leahy, August 1, 2007 (letter on file with the House 
Judiciary Committee).
    \6\ Spy Court Rejects No Requests in 2006, CNN.Com, May 1, 2007, 
available at http://www.cnn.com/2007/POLITICS/05/01/01/fisa.court.
---------------------------------------------------------------------------
    The Administration has acknowledged that, in carrying out 
its post-9/11 surveillance programs, it did not completely meet 
the then-existing FISA requirements. The Department of Justice 
has explained to Congress that ``FISA could not have provided 
the speed and agility required for the early warning detection 
system.'' \7\ The Administration argues that the NSA program 
did not violate existing law because Congress implicitly 
authorized such a program when it enacted the Authorization for 
the Use of Military Force (AUMF).\8\ Since January 10, 2007, 
according to a letter from Attorney General Gonzales, the TSP 
was conducted pursuant to review by the FISA Court.\9\
---------------------------------------------------------------------------
    \7\ Letter from the Honorable William E. Moschella, Assistant 
Attorney General, to the Honorable Pat Roberts, Chairman, Senate Select 
Committee on Intelligence, the Honorable John D. Rockefeller, IV, Vice 
Chairman, Senate Select Committee on Intelligence, the Honorable Peter 
Hoekstra, Chairman, Permanent Select Committee on Intelligence, and the 
Honorable Jane Harman, Ranking Minority Member, Permanent Select 
Committee on Intelligence (December 22, 2005) (on file with the U.S. 
Senate Select Committee on Intelligence) (hereinafter ``Moschella 
letter'').
    \8\ Id.; Authorization for the Use of Military Force, Pub. L. No. 
107-40, 115 Stat. 224 (2001). In a press conference in December 2005, 
then-Attorney General Gonzalez was asked why the Administration did not 
seek legislation for the surveillance program:
    ``Q. [Reporter]: If FISA didn't work, why didn't you seek a new 
statute that allowed something like this legally?
    ATTORNEY GENERAL GONZALES: That question was asked earlier. We've 
had discussions with members of Congress, certain members of Congress, 
about whether or not we could get an amendment to FISA, and we were 
advised that that was not likely to be--that was not something we could 
likely get, certainly now without jeopardizing the existence of the 
program, and therefore, killing the program. And that--and so a 
decision was made that because we felt that the authorities were there, 
that we should continue moving forward with this program.''
    Press Briefing by Attorney General Alberto Gonzales and General 
Michael Hayden, Principal Deputy for National Intelligence, Dec. 19, 
2005, available at http://www.whitehouse.gov/news/releases/2005/12/
20051219-1.html. Thus, the Administration argued on the one hand that 
Congress authorized the NSA program in the AUMF, and at the same time, 
asserted that it did not ask Congress for such authorization because it 
feared Congress would not grant such authorization. Moreover, Congress 
specifically rejected the Administration's request that the AUMF give 
President authority ``to deter and pre-empt any future acts of 
terrorism or aggression against the United States.'' See CRS Report RS 
22357, Authorization for Use of Military Force in response to the 9/11 
Attack (P.L. 107-40); Legislative History, by Richard F. Grimmett, 
available at http://www.congress.gov/erp/rs/pdf/RS22357.pdf.
    \9\ The Administration has refused to permit full House or Senate 
Judiciary Committee access to the FISA court orders and other details 
under which the program has been conducted, despite ongoing requests 
for information. The Administration has also refused to indicate 
whether it has conducted other programs of warrantless communication 
interceptions or physical searches, and whether any are currently 
continuing.
---------------------------------------------------------------------------

                      THE ``PROTECT AMERICA ACT''

    In late July 2007, the Administration called on Congress to 
complete short-term FISA revisions before its summer recess in 
August, to close what it termed pressing gaps in the 
surveillance regime. Director of National Intelligence J. 
Michael McConnell publicly characterized these gaps as having 
been created by different rulings concerning the surveillance 
program by different judges of the FISA Court after the program 
was brought under the Court's supervision in January 2007, 
leaving the intelligence community ``in extremis'' after May 
31, 2007.\10\
---------------------------------------------------------------------------
    \10\ Chris Roberts, Debate on the Foreign Intelligence Surveillance 
Act (transcript of interview with Director of National Intelligence 
Mike McConnell), available at http://www.elpasotimes.com/news/ci--
6685679. See also Carol D. Leonnig and Ellen Nakashima, Ruling Limited 
Spying Efforts: Move to Amend FISA Sparked by Judge's Decision, Wash. 
Post, August 3, 2007, at A1 (concerning revelations of Court action by 
Minority Leader John Boehner).
---------------------------------------------------------------------------
    The PAA modified FISA's definitions of electronic 
surveillance to exclude from FISA Court oversight situations 
where the underlying premise is that the surveillance is 
``directed at a person reasonably believed to be located 
outside of the United States.'' \11\ This was put forward by 
the Administration as a means to address the ``foreign-to-
foreign'' problem, as to which there is consensus that purely 
foreign communications are properly outside of the scope of 
FISA. This mechanism also had the effect of removing 
protections for ``United States persons''' communications. For 
instance, the required minimization procedures and restrictions 
on dissemination in FISA only apply to electronic surveillance 
as set forth in Section 101(f) of FISA.
---------------------------------------------------------------------------
    \11\ 50 U.S.C. 1805A (2007).
---------------------------------------------------------------------------
    Having re-defined electronic surveillance to exclude any 
such types of collection, the PAA set up mechanisms by which 
the Executive Branch, without court review, could issue its own 
year-long administrative program authorizations to obtain 
``foreign intelligence information from or with the assistance 
of a communications service provider [or its custodian]'' \12\ 
that ``concern'' a person outside of the United States. While 
the contents of the international communication sought had to 
``concern'' a person outside of the United States, the PAA was 
ambiguous and could be interpreted as permitting the target of 
the interception to be an American citizen inside the United 
States.
---------------------------------------------------------------------------
    \12\ 50 U.S.C. 1805B(3) (2007).
---------------------------------------------------------------------------
    As a precondition for issuing its administrative 
authorization under the PAA, the Executive Branch is required 
to certify to itself that: (1) there are reasonable procedures 
in place for determining that the information concerns a person 
outside of the United States; (2) the collection is not 
otherwise defined as electronic surveillance under FISA; (3) 
the information is gathered from a communications company, 
custodian, or other person in control of the communication or 
record; (4) a significant purpose of the acquisition is 
gathering foreign intelligence information; and (5) the 
minimization procedures under FISA apply.\13\
---------------------------------------------------------------------------
    \13\ 50 U.S.C. 1805B (2007).
---------------------------------------------------------------------------
    Under the PAA, the Executive Branch must submit a copy of 
these administrative authorizations to the FISA Court, but the 
authorization is sealed and is not reviewed by the FISA Court 
unless and until it is challenged by an entity that has 
received such an order.\14\ Under the PAA, the government may 
direct a communications company or other custodian to allow 
immediate access to its facilities for collection.\15\ The 
Administration has publicly stated its view that this does 
apply to libraries or medical facilities, but has conceded that 
it might be read to include business records. Nevertheless, the 
Administration claims that it would not use the authority with 
respect to these types of information.\16\ If the entity 
refuses to allow immediate access, the Government may seek a 
contempt ruling from the FISA Court. Review of challenges by 
the FISA Court, the Foreign Intelligence Surveillance Court of 
Review (FISCR), and even the Supreme Court is confined to 
determining whether ``such directive does not meet the 
requirements of [of FISA as amended by the PAA] or is otherwise 
unlawful.'' \17\
---------------------------------------------------------------------------
    \14\ Id.
    \15\ Id.
    \16\ Letter of Assistant Attorney General Kenneth Wainstein to 
HPSCI Chairman Sylvestre Reyes, Sept. 14, 2007, at 4.
    \17\ 50 U.S.C. 1805B (2007).
---------------------------------------------------------------------------
    The PAA provided prospective immunity for entities that 
comply with Government requests for assistance in carrying out 
these new surveillance activities.\18\ This is consistent with 
pre-existing law that provides immunity so long as the entity 
is acting in response to a statutorily sanctioned government 
request. The PAA did not provide retroactive immunity for 
actions taken pre-PAA without certifications reflecting an 
order of the FISA Court.
---------------------------------------------------------------------------
    \18\ Id.
---------------------------------------------------------------------------
    The PAA does authorize some limited judicial and 
Congressional oversight, with procedures in which the 
certifications are filed post hoc with the FISA Court, and a 
requirement that the Government inform the Intelligence and 
Judiciary Committees whether the Executive Branch is complying 
with its own minimization procedures.\19\ The Executive Branch 
must submit to the FISA Court the procedures by which this new 
surveillance program will ``not constitute electronic 
surveillance'' (in other words, will be directed at targets or 
facilities overseas) within four months of enactment, and then 
annually after that.\20\ The FISA Court is directed to 
determine by February 2008 whether the procedures provided by 
the Government are reasonably designed to ensure that 
acquisitions of communications are directed at people overseas. 
Even this minimal level of review is to be judged only on a 
``clearly erroneous'' standard.\21\
---------------------------------------------------------------------------
    \19\ 50 U.S.C. 1805C (2007).
    \20\ Id.
    \21\ Id.
---------------------------------------------------------------------------

                       H.R. 3773, THE RESTORE ACT

    The RESTORE Act provides a flexible program of surveillance 
against terrorists and other security threats. In circumstances 
where such surveillance is reasonably likely to encompass the 
interception of Americans' communications, the RESTORE Act 
requires that such surveillance be conducted under rules 
reviewed and approved by the FISA Court, and further requires 
that traditional FISA warrants be obtained when the government 
seeks to conduct surveillance against persons reasonably 
believed to be in the United States. Moreover, RESTORE provides 
ongoing oversight and enforcement by the FISA Court, the DOJ 
Inspector General, and the Congress.
    Section 10 of the RESTORE Act firmly reiterates that FISA 
is the exclusive means of foreign intelligence surveillance 
that may involve the interception of the communications of 
American citizens. The Act mandates that FISA exceptions can 
only be established through explicit statutory authorization.

Programmatic authorizations to target terrorist groups and other 
        foreign threats while ensuring safeguards for Americans who may 
        be intercepted in the process

    The RESTORE Act strengthens American counterterrorism 
efforts and Constitutional liberties at the same time. For a 
truly effective foreign intelligence surveillance effort, we 
must have certainty, legality, and flexibility. The RESTORE Act 
strikes that balance.
    To solve the confusion over whether the intelligence 
community must obtain individualized warrants against foreign 
targets when there is a risk that they might be talking with 
Americans, now that many communications transit the United 
States and can be acquired here, the RESTORE Act would allow a 
program of collection against the target organization or group 
(a ``foreign power,'' as defined in Section 101(a) of FISA), 
upon application and review. Thereafter, rather than having to 
obtain individual warrants against particular foreign persons, 
the government will be able to incorporate them into their 
targeting of that group.
    The Committee emphasizes that the Act does not require the 
Government to obtain individual warrants for terrorists 
overseas. Rather, this is a method by which to guarantee that 
the Administration can effectively target and surveil foreign 
terrorists without a warrant while preserving and protecting 
the rights of Americans' whose conversations may be 
intercepted.
    In light of the fact that such a programmatic authorization 
is a new approach, the RESTORE Act sets forth streamlined 
application procedures to guard against overbreadth or abuses 
while providing the additional flexibility. Section 3 of the 
RESTORE Act requires the Attorney General and Director of 
National Intelligence to apply to the FISA Court for an order 
authorizing the surveillance program described in the 
certification. The FISA Court must then issue a judicial 
directive to the communications provider to assist the 
government. Under this approach, the intelligence community is 
not required to obtain individual warrants when foreign 
communications are targeted, even if it is reasonably 
foreseeable that some of those communications may involve 
Americans. Nevertheless, the Court does have an oversight role 
when it is reasonably foreseeable that Americans' 
communications will be intercepted. Thus, Americans' privacy 
rights are appropriately protected, and the telecommunications 
providers have the certainty that they are being asked to 
provide information only as part of a legal process.

The role of the court in the RESTORE Act's Programmatic Authorizations 
        of Foreign Communications

    Unlike the PAA, the RESTORE Act provides for court 
involvement from the outset. As noted, the Executive Branch 
cannot simply undertake surveillance on its own where it is 
reasonable that Americans' communications may be intercepted, 
but must first obtain FISA Court authorization. Under section 3 
of the RESTORE Act, before issuing the authority, the Court 
must review and approve: (1) procedures for determining that 
the surveillance target is outside the United States; (2) 
guidelines to ensure individual FISA warrants are obtained if 
surveillance begins to target Americans; and (3) procedures to 
ensure that collected information is ``minimized'' to protect 
Americans' legitimate privacy interests. The FISA Court reviews 
all of these procedures to determine whether they are 
reasonably designed to achieve these goals.
    Notably, the FISA Court is not required to make any 
probable cause findings, or any other findings as to the 
evidentiary basis, reasonableness, or appropriateness of such 
surveillance those determinations are made in the Executive 
Branch. The Court's role is to appropriately safeguard the 
rights of Americans.
    In contrast, the PAA only allows Court review of general 
procedures for determining that the target is abroad and, even 
then, limits the Court to a ``clearly erroneous'' standard of 
review, tantamount to a rubber stamp.\22\ Under section 3 of 
the RESTORE Act, however, the FISA Court has an ongoing role in 
determining the reasonableness of its authorizations and must 
assess compliance with the procedures that it has initially 
approved.
---------------------------------------------------------------------------
    \22\ 50 U.S.C. 1805C (2007).
---------------------------------------------------------------------------
    Collectively these judicial responsibilities still permit 
programmatic surveillance based on certifications by the 
Attorney General and the Director of National Intelligence. But 
without these improvements, this new system of communications 
surveillance which could potentially violate the legitimate 
privacy rights of countless innocent Americans would remain 
entirely in the hands of Executive Branch officials. Recent and 
past history amply demonstrate that such concentration of 
unchecked power poses unacceptable threats to our civil 
liberties. For instance, that collecting and processing vast 
amounts of information about Americans is prone to error; \23\ 
and that investigative techniques employed without adequate 
judicial oversight can lead to substantial abuse.\24\ Adequate 
minimization rules are important for ensuring that the NSA can 
collect appropriate intelligence without it being 
indiscriminately disseminated throughout the Government.\25\ 
This is a particular concern regarding the broader 
authorization set forth in Section 105B of the PAA, which 
bypasses FISA review entirely and relies on internal agency 
procedures and minimization as the only line of defense of 
Americans' privacy.
---------------------------------------------------------------------------
    \23\ See Julia Preston, ``Judge Blocks Bush Measure on Illegal 
Workers,'' New York Times, October 11, 2007 at A1 (Court halts 
immigration employment enforcement program because Social Security 
database ``was laden with errors not related to a worker's immigration 
status'' that would result in up to 12.7 million Americans being 
misidentified as illegal aliens).
    \24\ Office of Inspector General, U.S. Dept. of Justice, A Review 
of the Federal Bureau of Investigation's Use of National Security 
Letters, Mar. 2007.
    \25\ The minimization rules generally required the ``masking'' of 
the identities of the U.S. persons on the summaries of the intercepted 
phone calls, though the information as to the identity may be disclosed 
upon request by to other components of the government. The New York 
Times reported that such disclosures were made to former Stated 
Department official John Bolton directly, and bluntly raised the 
specter that such disclosures could be made for political purposes: 
``If the National Security Agency provides officials with the 
identities of Americans on its tapes, what is the use of making secret 
those names in the first place? More troubling still is the apparent 
lack of guidelines or controls on this process: the whole thing seems 
like an invitation to any Beltway Richelieu hoping to gain an edge on 
his political foes.'' Patrick Radden Keefe, Big Brother and the 
Bureaucrats, N.Y. Times, Aug. 10, 2005, available at http://
query.nytimes.com/gst/fullpage.html? res= 9F04E4DF 143EF933A 2575BC0A 
9639C8B63&n= Top%2FReference%2 FTimes%20 Topics%2F Organizations%2FU%2F 
United%20Nations%20
---------------------------------------------------------------------------
    Strengthening the role of the FISA Court will not result in 
judges second-guessing intelligence experts; nor will it burden 
the intelligence community's ability to obtain vital 
intelligence promptly and use it effectively. The FISA Court 
will not second-guess intelligence judgments of who should be 
targeted, what information should be sought, or how it can be 
accessed within the United States. The bill leaves intelligence 
analysis to the intelligence professionals. The FISA Court will 
oversee the procedures by which the intelligence community 
determines that targets are indeed foreign nationals, and to 
ensure that minimization takes place appropriately and that 
individual FISA warrants are obtained when necessary.
    That is a fitting role for the courts in a society based on 
the rule of law; appropriate court involvement should be 
welcomed and respected.
    The FISA Court process set forth in the bill will not 
overburden the intelligence community. Emergency provisions in 
section 4 of the bill will ensure that no legitimate target 
goes uncovered. Moreover, the FISA Court's approvals of the 
Attorney General's procedures, and the guidelines required by 
the bill, are expected to be standardized in all but the most 
unusual cases. Moreover, as noted below, section 9 of the bill 
authorizes sufficient additional personnel and funding 
resources to ensure that neither the certification process nor 
the oversight audits of the program will slow down or backlog 
America's acquisition and use of critical intelligence. Rather, 
by requiring that the applications identify the foreign power 
against whom acquisition is directed, the bill will ensure that 
the authorizations do not give the Government an unlimited 
``blank check'' to conduct surveillance against anyone in the 
United States, but will instead focussurveillance on the 
particular threat to our Nation. Such a reasonable requirement guards 
against the ``drift-net'' collection of all communications world-wide, 
and protects against the targeting of innocent groups.
    Because warrants are not required for the programmatic 
surveillance authorization set forth in section 105B of FISA as 
revised by the bill, the bill adds other provisions to the PAA 
regime in order to safeguard the legitimate privacy interests 
of innocent Americans. Without these improvements, foreign 
intelligence can all too easily become domestic surveillance. 
These improvements ensure that when the Executive Branch is 
engaging in activities that involve the reasonable likelihood 
of the interceptions of conversations of United States persons, 
the judiciary may examine those activities to ensure that they 
do not transgress constitutional and statutory boundaries. It 
is important to note that none of these provisions prevent the 
intelligence community from listening to international 
communications, whether of Osama Bin Laden himself, other 
members of al Qaeda, or less notorious targets. It merely means 
that appropriate safeguards will apply where warranted.

Protecting Americans at home and abroad

    While Section 105(a) excludes from the warrant requirement 
the interception of communications among participants who are 
all outside the United States, that exclusion applies only to 
communications whose participants are not ``United States 
persons'' as defined in Section 101(I) of FISA--that is, who 
are not U.S. citizens or aliens lawfully admitted for permanent 
residence. Accordingly, this provision does not extend any 
protections to illegal aliens or aliens who are in the United 
States on a non-immigrant visa. It does provide appropriate 
protections to Americans and certain legal aliens in keeping 
with fundamental Constitutional principles.
    The courts generally have held that the Constitution, 
including the Fourth Amendment, protects United States persons 
abroad.\26\ At a time when it is now easy to obtain 
communications in the United States, given the growing 
interconnectedness of communications technologies, the 
Committee does not believe that Americans should lose their 
Fourth Amendment protections when traveling abroad. The PAA's 
overbreadth would allow unfettered access to Americans' 
communications whenever they set foot outside the country or 
leave its shores.
---------------------------------------------------------------------------
    \26\ Courts which have examined this point are generally in 
agreement that the Fourth Amendment protects U.S. persons from search 
abroad by their government. See, e.g. United States v. Conroy, 589 F2d. 
1258, 1264 (5th Cir. 1979); Berlin Democratic Club v. Rumsfeld, 410 F. 
Supp. 144, 157 (D.D.C. 1976). It has been suggested that this warrant 
requirement may not apply when the interception is accomplished abroad, 
because in that case the search may otherwise be reasonable. In judging 
the ``reasonableness'' of the search, however, the location of the 
intercept can be as important as the location of the U.S. person under 
surveillance. See, e.g., United States v. Verdugo-Urquidez, 494 U.S. 
259, 278 (1990) (Kennedy J. concurring) (``The absence of local judges 
available to issue warrants, the different and perhaps unascertainable 
conceptions of reasonableness and privacy that prevail abroad, and the 
need to cooperate with local foreign officials all indicate that the 
Fourth Amendment warrant requirement should not apply in Mexico as it 
does in this country.'').
---------------------------------------------------------------------------
    Section 3 of the RESTORE Act protects the privacy of all 
Americans abroad by mandating that the programmatic authority 
of Section 105B of FISA can only be used where ``the targets of 
the acquisition are reasonably believed to be [non-United 
States persons].'' In addition, the Executive Branch must 
certify in the application that it has promulgated guidelines 
to ensure that if surveillance becomes directed at someone 
reasonably believed to be a United States person, then a 
traditional FISA warrant is obtained as required by law.
    There have been published reports about the intelligence 
and law enforcement communities having telecommunications 
companies assist in the analysis of the ``social networks'' 
with data about suspects' patterns of communication. Like 
ripples in a pond, network analysis can lead to new subjects 
whose communications can then be targeted.\27\ Following such 
leads is an important and legitimate investigative tool, and 
the RESTORE Act does not prohibit this activity. The bill 
mandates safeguards to prevent abuses stemming from such use, 
by requiring that a warrant once a substantial purpose of the 
acquisition is to acquire the communications of a United States 
person. This requirement is fully consistent with Director of 
National Intelligence McConnell's insistence that NSA will not 
target an American in the United States without a FISA warrant. 
The FISA Court will approve the guidelines if it concludes that 
they are reasonably designed to ensure such an outcome.
---------------------------------------------------------------------------
    \27\ See e.g., Leslie Cauley, NSA Has Massive Database of 
Americans' Phone Calls, USA TODAY, May 11, 2006 (telephone companies 
cooperating with NSA pattern analysis without FISA warrants); and Eric 
Lichtblau, F.B.I. Data Mining Reached Beyond Initial Targets, N.Y. 
TIMES, September 9, 2007 (FBI sought ``community of interest data'' 
through National Security Letters).
---------------------------------------------------------------------------
    As noted above, section 2 of the RESTORE Act settles the 
issue of ``foreign-to-foreign'' communications, making clear 
that purely foreign communications do not require a FISA 
warrant and that foreign targets abroad are not to be extended 
Constitutional protections. Unlike the PAA, however, the 
RESTORE Act does not accomplish this by exempting such 
acquisitions from FISA's definitions of electronic 
surveillance. That approach has undercut other vital aspects of 
FISA that ensured that law-abiding Americans had legal 
protection against inappropriate acquisition and distribution 
of their private communications.

Preserving the programmatic collection of terrorist information while 
        protecting against the overbreadth of the Protect America Act

    The PAA is overbroad as to the scope of information that 
can be sought without a warrant, and as to the nature of the 
sources from which that information can be demanded by the 
Government. The RESTORE Act removes these overbroad 
authorities, which the Administration has in part disavowed any 
intention of seeking.
    For example, section 2 of the PAA authorizes the 
acquisition of information from domestic communications or 
other files and records, as long as their content concerns a 
person abroad, who need not even be a foreign intelligence 
target. Though the Administration insists that the intent of 
that provision is only to access the contents of the 
communication by the targeted person abroad, as the PAA is 
written the communication could be an entirely domestic one. 
Section 3 of the RESTORE Act accomplishes the objective that 
the intelligence community seeks, but without being so broad as 
to allow the warrantless tapping of Americans' mere 
conversations about foreigners. The RESTORE Act provides that 
collection under section 105B of FISA is only authorized where 
the target is believed to be a non-U.S. person outside of the 
United States and a significant purpose of the acquisition is 
to obtain foreign intelligence information relating to national 
security.
    An additional overbreadth concern is raised by the PAA 
provisions governing whom the Executive Branch can force to 
turn over the information sought. Under the PAA, the Attorney 
General and DNI could (without a court order) demand assistance 
not only from communication service providers and related 
entities, but also from any other person or entity who has 
custody of or access to communications, as they are transmitted 
or while they are being stored.\28\ Under the PAA, the 
Government could demand without a warrant access to any 
American's financial, medical, business or other private 
records that might contain a transcript, summary of, or notes 
about a communication concerning someone abroad, and could 
acquire these records from any custodian of records, such as a 
hospital or a business, or a library where the targeted person 
used the computer.\29\ This broad scope of collection is not 
allowed under the RESTORE Act. In this regard, the Committee 
emphasizes that it does not intend for a library to be 
considered a telecommunications service provider for purposes 
of the authorities set forth in sections 105B and 105C.
---------------------------------------------------------------------------
    \28\ 50 U.S.C. 1805B (2007).
    \29\ Id.
---------------------------------------------------------------------------
    Under the PAA, the Executive Branch must certify to itself 
that a substantial purpose of the surveillance is the 
acquisition of ``foreign intelligence.'' \30\ Under FISA, 
however, this term is defined so broadly that it would include 
almost any information relating to the foreign, economic, and 
diplomatic interests of the United States.\31\ Used in this 
manner, the breadth of this category is stunning, with no 
relation to the counterterrorism emergencies evoked by the 
Director of National Intelligence and the President in its 
defense.
---------------------------------------------------------------------------
    \30\ Id.
    \31\ 50 U.S.C. 1801(e) (1978).
---------------------------------------------------------------------------
    In response to these concerns, the RESTORE Act requires the 
Government, for purposes of surveillance based on programmatic 
authorizations under Section 105B rather than on a regular FISA 
warrant, to certify to the FISA Court that a substantial 
purpose of the surveillance will be the acquisition of foreign 
intelligence relating to terrorism, national defense, or other 
national security matters, as delineated in paragraphs (1) and 
(2)(A) of section 101(e) of FISA. Targets of this surveillance 
include radical jihadist groups, nuclear proliferators, hostile 
foreign governments, and narco-terrorists, among other threats.

Oversight and review

    Section 3 of the RESTORE Act directs the FISA Court to 
conduct ongoing review of compliance with the procedures that 
it has authorized. Section 7 of the bill also requiresvigorous 
audits by the independent Department of Justice Inspector General. 
These audits are not just internal to the Department of Justice, but 
must be delivered to the relevant committees of Congress and the FISA 
Court. The audits will assess compliance with the law and how the law 
is working in practice, so that Congress can strengthen the foreign 
intelligence gathering regime further as warranted to counter foreign 
threats and protect Americans lives and liberties. The audits will 
include whether any targets were found to be in the United States; the 
number of Americans whose communications were acquired; any situations 
in which information on Americans was disseminated, and the number of 
FISA warrants sought based on the authorizations. The audits must be 
submitted to the House and Senate Judiciary and Intelligence 
Committees.
    The Inspector General of the Justice Department has a 
singular record of careful, balanced, and thorough reviews of 
complex and controversial foreign intelligence collection 
programs. The audit mandated by the RESTORE Act involves 
judging compliance with procedures and guidelines mandated by 
statute, as well assessing the impact of those laws on civil 
liberties. Attorneys from the Department of Justice, rather 
than staff from the NSA, are the appropriate personnel to 
perform that important task, although it is expected that they 
can and will call on the NSA to provide data and technical 
expertise to complete some of that assessment.
    Under section 5 of the RESTORE Act, the Justice Department 
Inspector General is also directed to obtain and provide to 
Congress critical documents concerning the Administration's 
extra-legal warrantless wiretapping programs that have been 
conducted since September 11, 2001. This mandate supplements 
the following letter requests from the Judiciary Committee to 
the Administration:
           January 19 and February 1, 2007, for a 
        classified briefing for the entire House Judiciary 
        Committee on these programs, including the contents of 
        January 2007 Foreign Intelligence Surveillance Court 
        orders;
           May 17, 2007, requesting information about 
        the Terrorist Surveillance Program and aspects of the 
        Justice Department's involvement therein;
           July 30, 2007, reiterating prior requests 
        and inquiring into a seemingly previously unrevealed 
        program of surveillance;
           September 12, 2007, reiterating previous 
        letters joining in the request for information 
        subpoenaed by the Senate Judiciary Committee, and 
        posing additional questions concerning, inter alia, 
        telecommunications companies' involvement in the TSP.

As of the filing of this report, the Administration has failed 
to respond to any of these requests for information.
    The RESTORE Act requires that the issuance of security 
clearances to conduct the Inspector General review is to be 
expedited, to avoid a repeat of the Justice Department's 
attempt to conduct an internal investigation into the TSP, an 
effort which was opened on January 11, 2006 and closed 
approximately three months later after the President denied 
Office of Professional Responsibility investigators the 
necessary security clearances.\32\
---------------------------------------------------------------------------
    \32\ In a March 22, 2007 letter, the Department of Justice stated: 
``Within the Department of Justice, [the Office of Professional 
Responsibility] sought assistance in obtaining security clearances to 
the Terrorist Surveillance Program to conduct its investigation. This 
request reached the Attorney General . . . The Attorney General 
recommend to the President that OPR be granted security clearances to 
the Terrorist Surveillance Program. The President made the decision not 
to grant the requested security clearances.'' Letter from Richard A. 
Hertling, Acting Assistant Attorney General, to Rep. John Conyers, Jr., 
Mar. 22, 2007 (letter on file with House Committee on the Judiciary).
---------------------------------------------------------------------------
    Section 5 of the RESTORE Act requires the Attorney General 
and DNI to submit to Congress periodic reports on acquisitions 
made under this certification process and on any noncompliance 
with procedures and guidelines in their respective agencies. 
Having both agencies report will enable Congress to determine 
whether the statute or procedures implement in need to be 
modified. The RESTORE Act will also establish a record-keeping 
system to track the volume of personal information about U.S. 
persons acquired under this surveillance authorization and 
disseminated within the Government.
    The Committee believes these provisions constitute a 
coherent, sensible system to monitor how key provisions work in 
practice, in order to assess compliance with them and, equally 
important, to determine whether any of them need to be 
adjusted. This is necessary in order for Congress to perform 
its constitutional oversight responsibilities as a co-equal 
branch of Government. The oversight audits and reports should 
not slow down or backlog acquisition and use of critical 
intelligence, as the bill authorizes sufficient additional 
personnel and other resources to offset any increased workload 
involved in complying.

Sunset provisions

    The RESTORE Act sunsets in December 2009, to encourage 
assessment and appropriate modification in light of ongoing 
oversight by both the Judiciary and Intelligence Committees. 
The PAA was passed without hearings or meaningful legislative 
history, such as committee reports. After several hearings, 
extensive debate within Congress and among the public, and 
further analysis of that law, it is now clearer the extent to 
which the PAA could open the way for the invasion of privacy of 
innocent American families and businesses and thereby raise 
serious constitutional concerns. These flaws require Congress 
to act before the PAA's mandated sunset in 2008.
    Moreover, the experience with the PAA demonstrates why 
passing a permanent law at this juncture would be unwise. The 
Executive Branch has still not provided Congress with critical 
information about past surveillance programs and problems. 
While H.R. 3773 is a vast improvement, and responsibly 
addresses shortcomings and problems in both FISA and the PAA as 
they are currently understood, continued monitoring will be 
necessary as to how it is implemented and its impact on core 
civil liberties. The RESTORE Act creates a very thorough 
monitoring system that will help provide sufficient information 
for effective oversight. The Act will sunset in December 2009, 
allowing sufficient time for a comprehensive assessment of both 
these revisions and PATRIOT Act to be undertaken.

                                Hearings

    The Committee held two days of hearings on the effects of 
the Protect America Act. On September 5, 2007, testimony was 
received from: Bob Barr, former Member of the House of 
Representatives (R-GA), and currently a member of the Liberty 
and Security Initiative of the Constitution Project; Suzanne 
Spaulding, formerly Assistant General Counsel at the Central 
Intelligence Agency and formerly Minority staff director for 
the House Permanent Select Committee on Intelligence (HPSCI); 
Robert F. Turner, a former official in the Departments of 
Defense and State, now professor at the University of Virginia 
School of Law, where he serves as Associate Director of the 
Center for National Security Law; and Morton Halperin, fomerly 
an official in Departments of Defense and State and the 
National Security Council with service in the Johnson, Nixon 
and Clinton Administrations, now the Director of U.S. Advocacy 
for OpenSociety Institute and a Fellow at the Center for 
American Progress. On September 18, 2007, testimony was received from 
Michael McConnell, Director of National Intelligence, and Kenneth L. 
Wainstein, Assistant Attorney General, National Security Division, 
Department of Justice.

                        Committee Consideration

    On October 10, 2007, the Committee met in open session and 
ordered the bill H.R. 3773 favorably reported with an 
amendment, by a roll call vote of 20 to 14, a quorum being 
present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following roll call votes occurred during the Committee's 
consideration of H.R. 3773:
    1. An amendment by Mr. Nadler to require the judge who 
approved the application for foreign intelligence surveillance 
to assess compliance with the procedures set forth in the 
certification in support of the application. Adopted 23 to 14.

                                                   ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman......................................              X
Mr. Berman......................................................              X
Mr. Boucher.....................................................              X
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................              X
Mr. Delahunt....................................................              X
Mr. Wexler......................................................              X
Ms. Sanchez.....................................................              X
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................              X
Ms. Sutton......................................................              X
Mr. Gutierrez...................................................              X
Mr. Sherman.....................................................              X
Ms. Baldwin.....................................................              X
Mr. Weiner......................................................              X
Mr. Schiff......................................................              X
Mr. Davis.......................................................              X
Ms. Wasserman Schultz...........................................              X
Mr. Ellison.....................................................              X
Mr. Smith (Texas)...............................................                              X
Mr. Sensenbrenner, Jr...........................................                              X
Mr. Coble.......................................................                              X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................                              X
Mr. Chabot......................................................
Mr. Lungren.....................................................                              X
Mr. Cannon......................................................                              X
Mr. Keller......................................................                              X
Mr. Issa........................................................
Mr. Pence.......................................................                              X
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Feeney......................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................                              X
Mr. Jordan......................................................                              X
                                                                 -----------------------------------------------
    Total.......................................................             23              14
----------------------------------------------------------------------------------------------------------------

    2. An amendment in the nature of a substitute by Mr. Forbes 
to establish an alternate statutory scheme to govern the 
foreign intelligence surveillance activities under FISA, 
including a provision granting immunity to telecommunications 
companies for activities subsequent to September 11, 2001 that 
were conducted pursuant to authorizations from federal 
intelligence agencies. Defeated 14 to 21.

                                                   ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman......................................                              X
Mr. Berman......................................................                              X
Mr. Boucher.....................................................                              X
Mr. Nadler......................................................                              X
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................                              X
Ms. Waters......................................................                              X
Mr. Delahunt....................................................                              X
Mr. Wexler......................................................                              X
Ms. Sanchez.....................................................                              X
Mr. Cohen.......................................................                              X
Mr. Johnson.....................................................
Ms. Sutton......................................................                              X
Mr. Gutierrez...................................................
Mr. Sherman.....................................................                              X
Ms. Baldwin.....................................................                              X
Mr. Weiner......................................................                              X
Mr. Schiff......................................................                              X
Mr. Davis.......................................................                              X
Ms. Wasserman Schultz...........................................                              X
Mr. Ellison.....................................................                              X
Mr. Smith (Texas)...............................................              X
Mr. Sensenbrenner, Jr...........................................              X
Mr. Coble.......................................................              X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................              X
Mr. Chabot......................................................
Mr. Lungren.....................................................              X
Mr. Cannon......................................................              X
Mr. Keller......................................................              X
Mr. Issa........................................................
Mr. Pence.......................................................              X
Mr. Forbes......................................................              X
Mr. King........................................................              X
Mr. Feeney......................................................              X
Mr. Franks......................................................              X
Mr. Gohmert.....................................................              X
Mr. Jordan......................................................              X
                                                                 -----------------------------------------------
    Total.......................................................             14              21
----------------------------------------------------------------------------------------------------------------

    3. An amendment by Mr. Scott to require the Director of 
National Intelligence and the Attorney General to submit to the 
appropriate committees of Congress a description of the primary 
purpose of the acquisitions for which the application to obtain 
an order under Section 105B was submitted. Adopted 21 to 12.

                                                   ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman......................................              X
Mr. Berman......................................................              X
Mr. Boucher.....................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................              X
Mr. Delahunt....................................................              X
Mr. Wexler......................................................              X
Ms. Sanchez.....................................................              X
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................              X
Ms. Sutton......................................................              X
Mr. Gutierrez...................................................
Mr. Sherman.....................................................
Ms. Baldwin.....................................................              X
Mr. Weiner......................................................              X
Mr. Schiff......................................................              X
Mr. Davis.......................................................              X
Ms. Wasserman Schultz...........................................              X
Mr. Ellison.....................................................              X
Mr. Smith (Texas)...............................................                              X
Mr. Sensenbrenner, Jr...........................................
Mr. Coble.......................................................
Mr. Gallegly....................................................
Mr. Goodlatte...................................................                              X
Mr. Chabot......................................................                              X
Mr. Lungren.....................................................              X
Mr. Cannon......................................................                              X
Mr. Keller......................................................                              X
Mr. Issa........................................................
Mr. Pence.......................................................                              X
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Feeney......................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................                              X
Mr. Jordan......................................................                              X
                                                                 -----------------------------------------------
    Total.......................................................             21              12
----------------------------------------------------------------------------------------------------------------

    4. An amendment by Mr. Gohmert to strike sections 3 and 4 
of the bill, relating to procedures for authorizing 
acquisitions and emergency acquisitions of communications of 
non-United States persons located outside the United States. 
Defeated 16 to 19.

                                                   ROLLCALL NO. 4
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman......................................                              X
Mr. Berman......................................................                              X
Mr. Boucher.....................................................                              X
Mr. Nadler......................................................                              X
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................                              X
Ms. Waters......................................................
Mr. Delahunt....................................................                              X
Mr. Wexler......................................................                              X
Ms. Sanchez.....................................................                              X
Mr. Cohen.......................................................                              X
Mr. Johnson.....................................................                              X
Ms. Sutton......................................................                              X
Mr. Gutierrez...................................................
Mr. Sherman.....................................................
Ms. Baldwin.....................................................                              X
Mr. Weiner......................................................                              X
Mr. Schiff......................................................                              X
Mr. Davis.......................................................
Ms. Wasserman Schultz...........................................                              X
Mr. Ellison.....................................................                              X
Mr. Smith (Texas)...............................................              X
Mr. Sensenbrenner, Jr...........................................              X
Mr. Coble.......................................................              X
Mr. Gallegly....................................................              X
Mr. Goodlatte...................................................              X
Mr. Chabot......................................................              X
Mr. Lungren.....................................................
Mr. Cannon......................................................              X
Mr. Keller......................................................              X
Mr. Issa........................................................              X
Mr. Pence.......................................................              X
Mr. Forbes......................................................              X
Mr. King........................................................              X
Mr. Feeney......................................................              X
Mr. Franks......................................................              X
Mr. Gohmert.....................................................              X
Mr. Jordan......................................................              X
                                                                 -----------------------------------------------
    Total.......................................................             16              19
----------------------------------------------------------------------------------------------------------------

    5. On reporting the bill favorably. Agreed to 20 to 14.

                                                   ROLLCALL NO. 5
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman......................................              X
Mr. Berman......................................................              X
Mr. Boucher.....................................................              X
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................
Mr. Delahunt....................................................              X
Mr. Wexler......................................................              X
Ms. Sanchez.....................................................              X
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................              X
Ms. Sutton......................................................              X
Mr. Gutierrez...................................................
Mr. Sherman.....................................................
Ms. Baldwin.....................................................              X
Mr. Weiner......................................................              X
Mr. Schiff......................................................              X
Mr. Davis.......................................................              X
Ms. Wasserman Schultz...........................................              X
Mr. Ellison.....................................................              X
Mr. Smith (Texas)...............................................                              X
Mr. Sensenbrenner, Jr...........................................                              X
Mr. Coble.......................................................                              X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................                              X
Mr. Chabot......................................................                              X
Mr. Lungren.....................................................
Mr. Cannon......................................................                              X
Mr. Keller......................................................                              X
Mr. Issa........................................................
Mr. Pence.......................................................                              X
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Feeney......................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................                              X
Mr. Jordan......................................................                              X
                                                                 -----------------------------------------------
    Total.......................................................             20              14
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Pursuant to section 4(b)(7), there is authorized to be 
appropriated $5 million for each of fiscal years 2008 and 2009.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 3773, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, October 12, 2007.
Hon. John Conyers, Jr.,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 3773, the RESTORE 
Act of 2007.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Jason 
Wheelock.
            Sincerely,
                                        Robert A. Sunshine,
                                   (For Peter R. Orszag, Director).
    Enclosure.

H.R. 3773--RESTORE Act of 2007

    Summary: H.R. 3773 would modify a number of rules and 
procedures the government must follow when conducting 
electronic surveillance. In particular, the bill would amend 
several sections added to the Foreign Intelligence Surveillance 
Act (FISA) by the Protect America Act of 2007 (Public Law 110-
55). Under H.R. 3773, the government would have to apply to the 
Foreign Intelligence Surveillance Court (FISC) for 
authorization to conduct electronic surveillance on non-U.S. 
persons (individuals who are neither U.S. citizens nor 
permanent residents) outside the United States in instances 
when such surveillance could result in the government also 
obtaining the communications of individuals in the United 
States.
    Several sections of the bill would, if implemented, 
increase discretionary costs. However, CBO does not have access 
to the information necessary to estimate the impact on the 
budget of implementing H.R. 3773. Any changes in federal 
spending under the bill would be subject to the appropriation 
of the necessary funds. Enacting H.R. 3773 would not affect 
direct spending or revenues.
    The Unfunded Mandates Reform Act (UMRA) excludes from the 
application of that act any legislative provisions that are 
necessary for national security. CBO has determined that 
section 4 of H.R. 3773, which would authorize certain 
electronic surveillance without a court order in an emergency 
situation, falls under that exclusion and has not reviewed it 
for intergovernmental or private-sector mandates.
    Other provisions of H.R. 3773 contain intergovernmental 
mandates as defined in UMRA, but CBO estimates that any costs 
to state and local governments would fall well below the annual 
threshold established in that act ($66 million in 2007, 
adjusted annually for inflation).
    H.R. 3773 contains a private-sector mandate as defined in 
UMRA because it requires certain entities to assist the 
government with electronic surveillance. Because CBO has no 
information about the prevalence of electronic surveillance and 
the cost of compliance for private-sector entities assisting 
the government with electronic surveillance, CBO has no basis 
for estimating the costs of the mandate or whether the costs 
would exceed the annual threshold established by UMRA for 
private-sector mandates ($131 million in 2007, adjusted 
annually for inflation).
    Estimated cost to the Federal Government:
    The following provisions of H.R. 3773 could require 
additional appropriations:
     Section 7 would require the Inspector General of 
the Department of Justice (DOJ) to complete an audit of all 
programs involving the acquisition of communications conducted 
without a court order on or after September 11, 2001.
     Section 8 would require the Director of National 
Intelligence and the Attorney General to jointly develop and 
maintain a system to document instances when elements of the 
intelligence community have disclosed the identities of U.S. 
persons whose communications they have acquired to other 
departments or agencies of the U.S. government.
     Section 9 would authorize the appropriation of the 
amounts necessary to provide personnel and information 
technology for DOJ and the National Security Agency to submit 
timely applications to the FISC.
    CBO estimates that implementing those sections would 
increase the costs of conducting electronic surveillance, 
subject to the appropriation of the necessary funds. However, 
CBO does not have access to the information necessary to 
estimate the impact of those changes. Such an estimate would 
require information on the types and volume of surveillance 
that would be subject to those authorizations, and the current 
costs incurred by agencies involved in the FISA process.
    Estimated impact on state, local, and tribal governments: 
The Unfunded Mandates Reform Act excludes from the application 
of that act any legislative provisions that are necessary for 
national security. CBO has determined that section 4 of H.R. 
3773, which would authorize certain electronic surveillance 
without a court order in an emergency situation, falls under 
that exclusion and has not reviewed it for intergovernmental 
mandates.
    Other provisions of H.R. 3773 contain intergovernmental 
mandates as defined in UMRA. The bill would protect individuals 
from lawsuits if they comply with certain federal requests for 
information. That exemption would preempt some state and local 
liability laws, but CBO estimates this preemption would impose 
no costs on state, local, or tribal governments.
    The bill also would allow federal law enforcement officers 
to compel providers of communications services, including 
public institutions such as libraries, to provide information 
about their customers and users. Based on information from a 
recent survey of public libraries, CBO estimates that the 
number of requests likely would be small and that the total 
costs to public entities would be well below the annual 
threshold established in UMRA ($66 million in 2007, adjusted 
annually for inflation).
    Estimated impact on the private sector: H.R. 3773 contains 
a private-sector mandate as defined in UMRA because it requires 
certain entities to assist the government with electronic 
surveillance. CBO has no basis for estimating the costs of the 
mandate or whether the costs would exceed the annual threshold 
established by UMRA for private-sector mandates ($131 million 
in 2007, adjusted annually for inflation).
    H.R. 3773 would authorize the Director of National 
Intelligence and the Attorney General, after obtaining a 
judge's approval required under the bill, to require certain 
persons affiliated with a provider of communications services 
to provide the government with all information, facilities, and 
assistance necessary to conduct electronic surveillance and to 
acquire foreign intelligence. Because CBO has no information 
about how often such entities would be directed to provide 
assistance or the costs associated with providing assistance, 
CBO has no basis for estimating the costs of this mandate. The 
bill also would direct the government to compensate, at the 
prevailing rate, a person for providing such information, 
facilities, or assistance.
    Previous CBO estimate: On October 12, 2007, CBO also 
transmitted a cost estimate for H.R. 3773 as ordered reported 
by the House Permanent Select Committee on Intelligence (HPSCI) 
on October 10, 2007. The language of the two versions of the 
bill is similar, though this version of the bill does not 
contain some provisions included in the version approved by the 
HPSCI.
    The version of the bill approved by the HPSCI would require 
the Attorney General to develop and maintain a secure, 
classified document management system for preparing and 
reviewing submissions to the FISC. In addition, the version 
approved by the HPSCI contains authorizations for additional 
personnel for the Office of the Director of National 
Intelligence and the Foreign Intelligence Surveillance Court. 
Both of those provisions could make the cost of the version of 
H.R. 3773 approved by the HPSCI larger than the cost of the 
version of the bill approved by the Judiciary Committee.
    Estimate prepared by: Federal costs: Jason Wheelock; Impact 
on state, local, and tribal governments: Neil Hood; Impact on 
the private sector: Victoria Liu.
    Estimate approved by: Peter H. Fontaine, Assistant Director 
for Budget Analysis.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
3773 will strengthen the Nation's ability to collect foreign 
intelligence information and prevent terrorism consistent with 
the Fourth Amendment to the Constitution and the Nation's 
commitment to individual liberty.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in article I, section 8, clauses 1, 3, and 9 
of the Constitution, as well as the Fourth Amendment.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 3773 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(d), 9(e), or 9(f) of rule XXI.

                      Section-by-Section Analysis

    Section 1. Short Title and Table of Contents. Section 1 of 
the bill sets forth the short title as the Responsible 
Electronic Surveillance That is Overseen, Reviewed, and 
Effective Act of 2007 or RESTORE Act of 2007.
    Section 2. Clarification of Electronic Surveillance of Non-
United States Persons Outside the United States. Section 2 of 
the bill amends section 105A of FISA to address two situations: 
(1) ``foreign-to-foreign'' communications, and (2) foreign 
communications that involve or potentially involve U.S. 
communications (``one-end-foreign'' or ``one-end-potentially-
U.S.''). This section replaces section 105A of FISA, as amended 
by the PAA. And by making these clarifications stand alone, 
rather than amending the definition of electronic surveillance 
as did the PAA, this section avoids the collateral effect on 
other parts of FISA, such as Section 106 (governing the use and 
dissemination of U.S. person communications).
    Revised section 105A(a) clarifies that a court order is not 
required for the acquisition of the contents of communications 
between two non-U.S. persons located outside the United States, 
even where the surveillance device itself is located in the 
United States.
    Revised section 105A(b) provides that electronic 
surveillance of non-U.S. persons reasonably believed to be 
outside the United States, conducted for the purpose of 
collecting foreign intelligence information, must be done in 
accordance with court orders approved pursuant to section 105B 
or, in an emergency, section 105C. This provision limits the 
definition of ``foreign intelligence information'' to those 
forms described in section 101(e)(1) and (2)(A) of FISA 
[national security concerns such as terrorism, espionage or 
defense], to protect communications that merely concern foreign 
affairs, such as trade negotiations, business deals, or 
political visits.
    Section 3. Procedures for Authorizing Acquisitions of 
Communications of Non-United States Persons Located Outside the 
United States. Section 3 of the bill amends 105B of FISA to set 
forth procedures for authorizing acquisitions. The 
authorization must be issued by the FISA Court, as opposed to 
the Director of National Intelligence (DNI) or the Attorney 
General (AG) as currently provided in the PAA. Application 
requirements, standards of review, and scope of the 
authorization are specified in this section, which defines the 
roles of the Government, the court, and the telecommunications 
providers.
    Revised section 105B(a) provides that the DNI and the AG 
may apply for a court order to authorize the collection of 
communications of persons reasonably believed to be located 
outside the United States, conducted for the purpose of 
collecting foreign intelligence information as provided in 
Section 101(e)(1) and (2)(A) of FISA.
    Revised section 105B(b) specifies the requirements for the 
contents of an application under section 105B(a) with respect 
to the scope of the authorized acquisitions, the minimization 
and dissemination safeguards, and the requirement to obtain a 
FISA warrant when targeting U.S. persons' communications.
    First, the application must contain a certification from 
the DNI and the AG that: (1) the targets of acquisition are 
reasonably believed to be outside the United States; (2) the 
targets of acquisition are not known United States persons; (3) 
the acquisition involves obtaining the assistance of 
communications service providers; and (4) that a significant 
purpose of the acquisition is to obtain foreign intelligence 
information as provided in Section 101(e)(1) and (2)(A) of 
FISA. Targets of this surveillance include radical jihadist 
groups, nuclear proliferators, hostile foreign governments, and 
narco-terrorists.
    Second, the application must contain a description of: (1) 
the procedures that will be used to determine that there is a 
reasonable belief that the target of the acquisition is located 
outside the United States; (2) the nature of the information 
sought, including the foreign power against which acquisition 
will be directed; (3) minimization procedures that will be 
used, consistent with section 101(h) of FISA; and (4) the 
guidelines that will be used to ensure that a FISA warrant will 
be sought when a significant purpose of the acquisition is to 
acquire the communications of a specific person reasonably 
believed to be located in the United States. Revised section 
105B(c) provides that, as in the PAA, these declarations need 
not include specific facilities, places, or premises where the 
acquisition will be directed.
    Revised 105B(d) requires that the FISA Court review an 
application within 15 days, and approve it if the following 
criteria are met: (1) the procedures to determine whether the 
targets of acquisition are located outside the United States 
are reasonably designed to meet that goal; (2) the proposed 
minimization procedures satisfy the definition of minimization 
procedures in section 101(h) of FISA, and (3) the guidelines to 
ensure that a FISA warrant will be sought when a significant 
purpose of the acquisition is to acquire the communications of 
a specific person reasonably believed to be located in the 
United States are also reasonably designed to meet that goal.
    Revised section 105B(e) provides that the resulting order 
must: (1) authorize the acquisition as requested or as modified 
by the judge; (2) require the assistance of a communications 
service provider who has authorized access to the information 
or facilities sought; (3) require the service provider to 
maintain security over any records concerning the acquisition; 
(4) direct the government to compensate the service provider 
and to provide them with a copy of the court order, and (5) 
direct the government to follow the procedures and guidelines 
that it relied on in its application, as approved or modified 
by the court.
    Revised section 105B(e) also empowers the AG to invoke the 
aid of the FISA Court to compel a communications service 
provider to comply with the Court's order. It also provides 
prospective liability protection by establishing that no cause 
of action shall lie against any serviceprovider for complying 
with a court order issued under this section. It also requires the DNI 
and the FISA Court to retain such orders for at least 10 years, and 
empowers the Court to assess compliance with the minimization 
procedures and guidelines that it had approved, by reviewing the 
circumstances under which U.S. person communications were handled under 
the authorization.
    Section 4. Emergency Authorization of Acquisitions of 
Communications of Non-United States Persons Located Outside the 
United States. Section 4 of the bill amends section 105C of 
FISA.
    Revised Section 105C(a) allows for an emergency 
authorization of overseas collection by the DNI and AG, but 
requires that they submit an application consistent with 
section 105B within 7 days after authorizing the emergency 
acquisition.
    Revised section 105C(b) empowers the DNI and the AG to 
authorize emergency acquisition of foreign intelligence 
information for a period of no more than 45 days if they 
determine: that an emergency situation exists in respect to a 
section 105B collection; that the targets of the acquisition 
are reasonably believed to be outside the United States; that 
there are reasonable procedures in place to determine that the 
targets of the acquisition are reasonably believed to be 
outside the United States; that targets of the acquisition are 
not known to be United States persons; that the acquisition 
involves obtaining the assistance of communications service 
providers; that a significant purpose of the acquisition is to 
obtain foreign intelligence information under section 101(e)(1) 
and (2)(A); that minimization procedures to be used meet the 
definition of minimization procedures under section 101(h) of 
FISA; and that there are guidelines that will be used to ensure 
that an application under Section 104 of FISA is filed when the 
government seeks to conduct electronic surveillance of a person 
reasonably believed to be located in the United States. Section 
105C(b) also requires that, in addition to the requirement to 
submit a formal 105B application within 7 days, the DNI and the 
AG must inform the FISA Court of the emergency authorization at 
the time it is issued.
    Revised section 105C(c) provides that the AG may direct a 
communications service provider to render assistance in 
conducting the emergency acquisition, and maintain security 
over any records concerning the emergency acquisition.
    Section 5. Oversight of Acquisitions of Communications of 
Non-United States Persons Located Outside of the United States. 
Section 5 of the bill adds a new section 105D to FISA.
    New section 105D(a) requires that, within 7 days of 
submitting a section 105B application to the FISA Court, the 
DNI and the AG must submit to the appropriate committees of 
Congress a copy of the application (including the certification 
under section 105B(b)) and a copy of the order issued, 
including the procedures and guidelines referred to in 105B(d).
    New section 105D(b) requires the Inspector General of the 
Justice Department to conduct quarterly audits of the 
implementation of and compliance with the guidelines referred 
to in section 105B(d), and mandates that the results of such 
audits shall be reported to the appropriate committees of 
Congress, the DNI, the AG, and the FISA Court. This audit must 
include: (1) a list of any targets of acquisition that were 
determined to be located in the United States; (2) the number 
of persons located in the United States whose communications 
were intercepted under section 105B; (3) the number of reports 
disseminated that contained information on United States 
persons that was collected under section 105B, and (4) the 
number of applications submitted for approval of electronic 
surveillance under section 104 of FISA that were based upon 
information collected under section 105B authorizations. The AG 
is tasked with providing a report of such audit no later than 
30 days after the completion of an audit, to the appropriate 
committees of Congress.
    New section 105D(c) requires the DNI and the AG to submit 
to the appropriate committees of Congress and the FISA Court a 
compliance report that includes any incidents of non-compliance 
by an element of the intelligence community with the procedures 
and guidelines referred to in section 105B(d) or by a person 
directed to provide information, facilities, or technical 
assistance pursuant to an order issued under section 105B or an 
authorization under section 105C. This report must be submitted 
no later than 60 days after enactment and every 120 days 
thereafter.
    New section 105D(d) defines ``appropriate committees of 
Congress'' to mean the House Permanent Select Committee on 
Intelligence, the Senate Select Committee on Intelligence, the 
House Judiciary Committee, and the Senate Judiciary Committee.
    Section 6. Foreign Intelligence Surveillance Court En Banc. 
Section 6 of the bill amends section 103C of FISA to authorize 
the FISA Court, in its discretion, to sit en banc to review 
applications and issue orders.
    Section 7. Audit of Warrantless Surveillance Programs. 
Section 7 of the bill requires the Inspector General of the 
Justice Department to conduct an audit of all electronic 
surveillance programs conducted without a warrant since 
September 11, 2001, including the Terrorist Surveillance 
Program, within 180 days of enactment. As a part of this audit, 
the Inspector General shall acquire all documents relevant to 
these programs. Within 30 days of completing the audit, the IG 
is to submit an audit report, and the documents, to the 
appropriate committees of Congress. To facilitate this audit, 
the DNI is tasked with ensuring that the process for granting 
necessary clearances for the Inspector General and appropriate 
staff is conducted as expeditiously as possible.
    Section 8. Record-keeping for Acquisition of Communications 
of United States Persons. Section 8 of the bill requires the 
DNI and the AG to develop and maintain a system to keep records 
of the instances where the identity of U.S. persons whose 
communications were intercepted without a warrant have been 
disclosed to other government departments or agencies, and 
requires an annual report to Congress on this record-keeping 
effort.
    Section 9. Authorization for Increased Resources Relating 
to Foreign Intelligence Surveillance Act. Section 9 of the bill 
authorizes appropriations for the Justice Department and the 
National Security Agency to meet resource demands associated 
with submitting applications to the FISA Court and fulfilling 
the bill's audit and reporting requirements.
    Section 10. Reiteration of FISA as the Exclusive Means by 
which Electronic Surveillance May be Conducted for Gathering 
Foreign Intelligence Information. Section 10 of the bill 
reiterates that FISA is the exclusive means for conducting 
electronic surveillance for purposes of collecting foreign 
intelligence information, and specifies that explicit statutory 
authorization is required in order to establish an exception to 
FISA.
    Section 11. Technical and Conforming Amendments. Section 11 
of the bill amends the table of contents in FISA to include 
titles for sections 105A-D; revises a reference to the FISA 
Court added by the PAA, to provide jurisdiction to review 
applications submitted under section 105B; and repeals the 
reporting requirements and transition procedures established 
under the PAA.
    Section 12. Sunset; Transition Procedures. Section 12 
provides that these revisions sunset on December 31, 2009, with 
the exception that any section 105B authorizations in effect on 
that date are valid through the date of expiration of the 
particular order. Section 12 also provides that any 
authorization issued under section 105B that was in effect 
prior to the enactment of the bill (that is, issued under the 
PAA) shall remain in effect until the authorization's 
expiration or until 180 days after the date of enactment of the 
RESTORE Act, whichever is earlier.

            Changes in Existing Law by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, H.R. 3773, as reported, are shown as follows 
(existing law proposed to be omitted is enclosed in black 
brackets, new matter is printed in italic, existing law in 
which no changes are proposed is shown in roman):

             FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978


     AN ACT To authorize electronic surveillance to obtain foreign 
                       intelligence information.

  Be it enacted by the Senate and House of Representatives of 
the United States of America in Congress assembled, That this 
Act may be cited as the ``Foreign Intelligence Surveillance Act 
of 1978''.

                            TABLE OF CONTENTS

 TITLE I--ELECTRONIC SURVEILLANCE WITHIN THE UNITED STATES FOR FOREIGN 
                          INTELLIGENCE PURPOSES

Sec. 101.  Definitions.
     * * * * * * *
[105A. Clarification of electronic surveillance of persons outside the 
          United States.
[105B. Additional procedure for authorizing certain acquisitions 
          concerning persons located outside the United States.
[105C. Submission to court review of procedures.]
Sec. 105A. Clarification of electronic surveillance of non-United States 
          persons outside the United States.
Sec. 105B. Procedure for authorizing acquisitions of communications of 
          non-United States persons located outside the United States.
Sec. 105C. Emergency authorization of acquisitions of communications of 
          non-United States persons located outside the United States.
Sec. 105D. Oversight of acquisitions of communications of non-United 
          States persons located outside of the United States.

           *       *       *       *       *       *       *


 TITLE I--ELECTRONIC SURVEILLANCE WITHIN THE UNITED STATES FOR FOREIGN 
INTELLIGENCE PURPOSES

           *       *       *       *       *       *       *


                         DESIGNATION OF JUDGES

  Sec. 103. (a) * * *

           *       *       *       *       *       *       *

  (e)(1) Three judges designated under subsection (a) who 
reside within 20 miles of the District of Columbia, or, if all 
of such judges are unavailable, other judges of the court 
established under subsection (a) as may be designated by the 
presiding judge of such court, shall comprise a petition review 
pool which shall have jurisdiction to review petitions filed 
pursuant to section [105B(h) or] 501(f)(1) .
  (2) Not later than 60 days after the date of the enactment of 
the USA PATRIOT Improvement and Reauthorization Act of 2005, 
the court established under subsection (a) shall adopt and, 
consistent with the protection of national security, publish 
procedures for the review of petitions filed pursuant to 
section [105B(h) or] 501(f)(1) by the panel established under 
paragraph (1). Such procedures shall provide that review of a 
petition shall be conducted in camera and shall also provide 
for the designation of an acting presiding judge.

           *       *       *       *       *       *       *

  (g) In any case where the court established under subsection 
(a) or a judge of such court is required to review a matter 
under this Act, the court may, at the discretion of the court, 
sit en banc to review such matter and issue any orders related 
to such matter.

           *       *       *       *       *       *       *


[CLARIFICATION OF ELECTRONIC SURVEILLANCE OF PERSONS OUTSIDE THE UNITED 
                                 STATES

  [Sec. 105A. Nothing in the definition of electronic 
surveillance under section 101(f) shall be construed to 
encompass surveillance directed at a person reasonably believed 
to be located outside of the United States.

 [ADDITIONAL PROCEDURE FOR AUTHORIZING CERTAIN ACQUISITIONS CONCERNING 
               PERSONS LOCATED OUTSIDE THE UNITED STATES

  [Sec. 105B. (a) Notwithstanding any other law, the Director 
of National Intelligence and the Attorney General, may for 
periods of up to one year authorize the acquisition of foreign 
intelligence information concerning persons reasonably believed 
to be outside the United States if the Director of National 
Intelligence and the Attorney General determine, based on the 
information provided to them, that--
          [(1) there are reasonable procedures in place for 
        determining that the acquisition of foreign 
        intelligence information under this section concerns 
        persons reasonably believed to be located outside the 
        United States, and such procedures will be subject to 
        review of the Court pursuant to section 105C of this 
        Act;
          [(2) the acquisition does not constitute electronic 
        surveillance;
          [(3) the acquisition involves obtaining the foreign 
        intelligence information from or with the assistance of 
        a 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 
        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;
          [(4) a significant purpose of the acquisition is to 
        obtain foreign intelligence information; and
          [(5) the minimization procedures to be used with 
        respect to such acquisition activity meet the 
        definition of minimization procedures under section 
        101(h).
  [This determination shall be in the form of a written 
certification, under oath, supported as appropriate by 
affidavit of appropriate officials in the national security 
field occupying positions appointed by the President, by and 
with the consent of the Senate, or the Head of any Agency of 
the Intelligence Community, unless immediate action by the 
Government is required and time does not permit the preparation 
of a certification. In such a case, the determination of the 
Director of National Intelligence and the Attorney General 
shall be reduced to a certification as soon as possible but in 
no event more than 72 hours after the determination is made.
  [(b) 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) The Attorney General shall transmit as soon as 
practicable 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 105B.
  [(d) An acquisition under this section may be conducted only 
in accordance with the certification of the Director of 
National Intelligence and the Attorney General, or their oral 
instructions if time does not permit the preparation of a 
certification, and the minimization procedures adopted by the 
Attorney General. The Director of National Intelligence and 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).
  [(e) With respect to an authorization of an acquisition under 
section 105B, the Director of National Intelligence and 
Attorney General may direct a person to--
          [(1) immediately provide the Government with all 
        information, facilities, and assistance necessary to 
        accomplish the acquisition in such a manner as will 
        protect the secrecy of the 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 acquisition or 
        the aid furnished that such person wishes to maintain.
  [(f) The Government shall compensate, at the prevailing rate, 
a person for providing information, facilities, or assistance 
pursuant to subsection (e).
  [(g) In the case of a failure to comply with a directive 
issued pursuant to subsection (e), the Attorney General may 
invoke the aid of the court established under section 103(a) to 
compel compliance with the directive. The court shall issue an 
order requiring the person to comply with the directive if it 
finds that the directive was issued in accordance with 
subsection (e) 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 may be found.
  [(h)(1)(A) A person receiving a directive issued pursuant to 
subsection (e) may challenge the legality of that directive by 
filing a petition with the pool established under section 
103(e)(1).
  [(B) 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 48 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 immediately 
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) 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 immediately affirm such 
directive, and order the recipient to comply with such 
directive.
  [(3) Any directive not explicitly modified or set aside under 
this subsection shall remain in full effect.
  [(i) The Government or a person receiving a directive 
reviewed pursuant to subsection (h) may file a petition with 
the Court of Review established under section 103(b) for review 
of the decision issued pursuant to subsection (h) 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 for a writ of certiorari by the 
Government or any person receiving such directive, the record 
shall be transmitted under seal to the Supreme Court, which 
shall have jurisdiction to review such decision.
  [(j) 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.
  [(k) 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.
  [(l) Notwithstanding any other law, 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.
  [(m) 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.

               [SUBMISSION TO COURT REVIEW OF PROCEDURES

  [Sec. 105C. (a) No later than 120 days after the effective 
date of this Act, the Attorney General shall submit to the 
Court established under section 103(a), the procedures by which 
the Government determines that acquisitions conducted pursuant 
to section 105B do not constitute electronic surveillance. The 
procedures submitted pursuant to this section shall be updated 
and submitted to the Court on an annual basis.
  [(b) No later than 180 days after the effective date of this 
Act, the court established under section 103(a) shall assess 
the Government's determination under section 105B(a)(1) that 
those procedures are reasonably designed to ensure that 
acquisitions conducted pursuant to section 105B do not 
constitute electronic surveillance. The court's review shall be 
limited to whether the Government's determination is clearly 
erroneous.
  [(c) If the court concludes that the determination is not 
clearly erroneous, it shall enter an order approving the 
continued use of such procedures. If the court concludes that 
the determination is clearly erroneous, it shall issue an order 
directing the Government to submit new procedures within 30 
days or cease any acquisitions under section 105B that are 
implicated by the court's order.
  [(d) The Government may appeal any order issued under 
subsection (c) to the court established under section 103(b). 
If such court determines that the order was properly entered, 
the court shall immediately provide for the record a written 
statement of each reason for its decision, and, on petition of 
the United States for a writ of certiorari, the record shall be 
transmitted under seal to the Supreme Court of the United 
States, which shall have jurisdiction to review such decision. 
Any acquisitions affected by the order issued under subsection 
(c) of this section may continue during the pendency of any 
appeal, the period during which a petition for writ of 
certiorari may be pending, and any review by the Supreme Court 
of the United States.]

 CLARIFICATION OF ELECTRONIC SURVEILLANCE OF NON-UNITED STATES PERSONS 
                       OUTSIDE THE UNITED STATES

  Sec. 105A.  (a) Foreign to Foreign Communications.--
Notwithstanding any other provision of this Act, a court order 
is not required for the acquisition of the contents of any 
communication between persons that are not United States 
persons and are not located within the United States for the 
purpose of collecting foreign intelligence information, without 
respect to whether the communication passes through the United 
States or the surveillance device is located within the United 
States.
  (b) Communications of Non-United States Persons Outside of 
the United States.--Notwithstanding any other provision of this 
Act other than subsection (a), electronic surveillance that is 
directed at the acquisition of the communications of a person 
that is reasonably believed to be located outside the United 
States and not a United States person for the purpose of 
collecting foreign intelligence information (as defined in 
paragraph (1) or (2)(A) of section 101(e)) by targeting that 
person shall be conducted pursuant to--
          (1) an order approved in accordance with section 105 
        or 105B; or
          (2) an emergency authorization in accordance with 
        section 105 or 105C.

PROCEDURE FOR AUTHORIZING ACQUISITIONS OF COMMUNICATIONS OF NON-UNITED 
            STATES PERSONS LOCATED OUTSIDE THE UNITED STATES

  Sec. 105B.  (a) In General.--Notwithstanding any other 
provision of this Act, the Director of National Intelligence 
and the Attorney General may jointly apply to a judge of the 
court established under section 103(a) for an ex parte order, 
or the extension of an order, authorizing for a period of up to 
one year the acquisition of communications of persons that are 
reasonably believed to be located outside the United States and 
not United States persons for the purpose of collecting foreign 
intelligence information (as defined in paragraph (1) or (2)(A) 
of section 101(e)) by targeting those persons.
  (b) Application Inclusions.--An application under subsection 
(a) shall include--
          (1) a certification by the Director of National 
        Intelligence and the Attorney General that--
                  (A) the targets of the acquisition of foreign 
                intelligence information under this section are 
                persons reasonably believed to be located 
                outside the United States;
                  (B) the targets of the acquisition are 
                reasonably believed to be persons that are not 
                United States persons;
                  (C) the acquisition involves obtaining the 
                foreign intelligence information from, or with 
                the assistance of, a communications service 
                provider or custodian, or an officer, employee, 
                or agent of such service provider or custodian, 
                who has authorized access to the communications 
                to be acquired, 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; and
                  (D) a significant purpose of the acquisition 
                is to obtain foreign intelligence information 
                (as defined in paragraph (1) or (2)(A) of 
                section 101(e)); and
          (2) a description of--
                  (A) the procedures that will be used by the 
                Director of National Intelligence and the 
                Attorney General during the duration of the 
                order to determine that there is a reasonable 
                belief that the targets of the acquisition are 
                persons that are located outside the United 
                States and not United States persons;
                  (B) the nature of the information sought, 
                including the identity of any foreign power 
                against whom the acquisition will be directed;
                  (C) minimization procedures that meet the 
                definition of minimization procedures under 
                section 101(h) to be used with respect to such 
                acquisition; and
                  (D) the guidelines that will be used to 
                ensure that an application is filed under 
                section 104, if otherwise required by this Act, 
                when a significant purpose of an acquisition is 
                to acquire the communications of a specific 
                person reasonably believed to be located in the 
                United States.
  (c) Specific Place Not Required.--An application 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.
  (d) Review of Application.--Not later than 15 days after a 
judge receives an application under subsection (a), the judge 
shall review such application and shall approve the application 
if the judge finds that--
          (1) the proposed procedures referred to in subsection 
        (b)(2)(A) are reasonably designed to determine whether 
        the targets of the acquisition are located outside the 
        United States and not United States persons;
          (2) the proposed minimization procedures referred to 
        in subsection (b)(2)(C) meet the definition of 
        minimization procedures under section 101(h); and
          (3) the guidelines referred to in subsection 
        (b)(2)(D) are reasonably designed to ensure that an 
        application is filed under section 104, if otherwise 
        required by this Act, when a significant purpose of an 
        acquisition is to acquire the communications of a 
        specific person reasonably believed to be located in 
        the United States.
  (e) Order.--
          (1) In general.--A judge approving an application 
        under subsection (d) shall issue an order--
                  (A) authorizing the acquisition of the 
                contents of the communications as requested, or 
                as modified by the judge;
                  (B) requiring the communications service 
                provider or custodian, or officer, employee, or 
                agent of such service provider or custodian, 
                who has authorized access to the information, 
                facilities, or technical assistance necessary 
                to accomplish the acquisition to provide such 
                information, facilities, or technical 
                assistance necessary to accomplish the 
                acquisition and to produce a minimum of 
                interference with the services that provider, 
                custodian, officer, employee, or agent is 
                providing the target of the acquisition;
                  (C) requiring such communications service 
                provider, custodian, officer, employee, or 
                agent, upon the request of the applicant, to 
                maintain under security procedures approved by 
                the Attorney General and the Director of 
                National Intelligence any records concerning 
                the acquisition or the aid furnished;
                  (D) directing the Federal Government to--
                          (i) compensate, at the prevailing 
                        rate, a person for providing 
                        information, facilities, or assistance 
                        pursuant to such order; and
                          (ii) provide a copy of the portion of 
                        the order directing the person to 
                        comply with the order to such person; 
                        and
                  (E) directing the applicant to follow--
                          (i) the procedures referred to in 
                        subsection (b)(2)(A) as proposed or as 
                        modified by the judge;
                          (ii) the minimization procedures 
                        referred to in subsection (b)(2)(C) as 
                        proposed or as modified by the judge; 
                        and
                          (iii) the guidelines referred to in 
                        subsection (b)(2)(D) as proposed or as 
                        modified by the judge.
          (2) Failure to comply.--If a person fails to comply 
        with an order issued under paragraph (1), the Attorney 
        General may invoke the aid of the court established 
        under section 103(a) to compel compliance with the 
        order. 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 may be found.
          (3) Liability of order.--Notwithstanding any other 
        law, no cause of action shall lie in any court against 
        any person for providing any information, facilities, 
        or assistance in accordance with an order issued under 
        this subsection.
          (4) Retention of order.--The Director of National 
        Intelligence and the court established under subsection 
        103(a) shall retain an order issued under this section 
        for a period of not less than 10 years from the date on 
        which such order is issued.
          (5) Assessment of compliance with court order.--At or 
        before the end of the period of time for which an 
        acquisition is approved by an order or an extension 
        under this section, the judge shall assess compliance 
        with the procedures and guidelines referred to in 
        paragraph (1)(E) and review the circumstances under 
        which information concerning United States persons was 
        acquired, retained, or disseminated.

EMERGENCY AUTHORIZATION OF ACQUISITIONS OF COMMUNICATIONS OF NON-UNITED 
            STATES PERSONS LOCATED OUTSIDE THE UNITED STATES

  Sec. 105C. (a) Application After Emergency Authorization.--As 
soon as is practicable, but not more than 7 days after the 
Director of National Intelligence and the Attorney General 
authorize an acquisition under this section, an application for 
an order authorizing the acquisition in accordance with section 
105B shall be submitted to the judge referred to in subsection 
(b)(2) of this section for approval of the acquisition in 
accordance with section 105B.
  (b) Emergency Authorization.--Notwithstanding any other 
provision of this Act, the Director of National Intelligence 
and the Attorney General may jointly authorize the emergency 
acquisition of foreign intelligence information for a period of 
not more than 45 days if--
          (1) the Director of National Intelligence and the 
        Attorney General jointly determine that--
                  (A) an emergency situation exists with 
                respect to an authorization for an acquisition 
                under section 105B before an order approving 
                the acquisition under such section can with due 
                diligence be obtained;
                  (B) the targets of the acquisition of foreign 
                intelligence information under this section are 
                persons reasonably believed to be located 
                outside the United States;
                  (C) the targets of the acquisition are 
                reasonably believed to be persons that are not 
                United States persons;
                  (D) there are reasonable procedures in place 
                for determining that the acquisition of foreign 
                intelligence information under this section 
                will be acquired by targeting only persons that 
                are reasonably believed to be located outside 
                the United States and not United States 
                persons;
                  (E) the acquisition involves obtaining the 
                foreign intelligence information from, or with 
                the assistance of, a communications service 
                provider or custodian, or an officer, employee, 
                or agent of such service provider or custodian, 
                who has authorized access to the communications 
                to be acquired, 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;
                  (F) a significant purpose of the acquisition 
                is to obtain foreign intelligence information 
                (as defined in paragraph (1) or (2)(A) of 
                section 101(e));
                  (G) minimization procedures to be used with 
                respect to such acquisition activity meet the 
                definition of minimization procedures under 
                section 101(h); and
                  (H) there are guidelines that will be used to 
                ensure that an application is filed under 
                section 104, if otherwise required by this Act, 
                when a significant purpose of an acquisition is 
                to acquire the communications of a specific 
                person reasonably believed to be located in the 
                United States; and
          (2) the Director of National Intelligence and the 
        Attorney General, or their designees, inform a judge 
        having jurisdiction to approve an acquisition under 
        section 105B at the time of the authorization under 
        this section that the decision has been made to acquire 
        foreign intelligence information.
  (c) Information, Facilities, and Technical Assistance.--
Pursuant to an authorization of an acquisition under this 
section, the Attorney General may direct a communications 
service provider, custodian, or an officer, employee, or agent 
of such service provider or custodian, who has the lawful 
authority to access the information, facilities, or technical 
assistance necessary to accomplish such acquisition to--
          (1) furnish the Attorney General forthwith with such 
        information, facilities, or technical assistance in a 
        manner that will protect the secrecy of the acquisition 
        and produce a minimum of interference with the services 
        that provider, custodian, officer, employee, or agent 
        is providing the target of the acquisition; and
          (2) maintain under security procedures approved by 
        the Attorney General and the Director of National 
        Intelligence any records concerning the acquisition or 
        the aid furnished.--

   OVERSIGHT OF ACQUISITIONS OF COMMUNICATIONS OF NON-UNITED STATES 
              PERSONS LOCATED OUTSIDE OF THE UNITED STATES

  Sec. 105D. (a) Application; Procedures; Orders.--Not later 
than 7 days after an application is submitted under section 
105B(a) or an order is issued under section 105B(e), the 
Director of National Intelligence and the Attorney General 
shall submit to the appropriate committees of Congress--
  (1) in the case of an application--
          (A) a copy of the application, including the 
        certification made under section 105B(b)(1); and
          (B) a description of the primary purpose of the 
        acquisition for which the application is submitted; and
  (2) in the case of an order, a copy of the order, including 
the procedures and guidelines referred to in section 
105B(e)(1)(E).
  (b) Quarterly Audits.--
          (1) Audit.--Not later than 120 days after the date of 
        the enactment of this section, and every 120 days 
        thereafter until the expiration of all orders issued 
        under section 105B, the Inspector General of the 
        Department of Justice shall complete an audit on the 
        implementation of and compliance with the procedures 
        and guidelines referred to in section 105B(e)(1)(E) and 
        shall submit to the appropriate committees of Congress, 
        the Attorney General, the Director of National 
        Intelligence, and the court established under section 
        103(a) the results of such audit, including, for each 
        order authorizing the acquisition of foreign 
        intelligence under section 105B--
                  (A) the number of targets of an acquisition 
                under such order that were later determined to 
                be located in the United States;
                  (B) the number of persons located in the 
                United States whose communications have been 
                acquired under such order;
                  (C) the number and nature of reports 
                disseminated containing information on a United 
                States person that was collected under such 
                order; and
                  (D) the number of applications submitted for 
                approval of electronic surveillance under 
                section 104 for targets whose communications 
                were acquired under such order.
          (2) Report.--Not later than 30 days after the 
        completion of an audit under paragraph (1), the 
        Attorney General shall submit to the appropriate 
        committees of Congress and the court established under 
        section 103(a) a report containing the results of such 
        audit.
  (c) Compliance Reports.--Not later than 60 days after the 
date of the enactment of this section, and every 120 days 
thereafter until the expiration of all orders issued under 
section 105B, the Director of National Intelligence and the 
Attorney General shall submit to the appropriate committees of 
Congress and the court established under section 103(a) a 
report concerning acquisitions under section 105B during the 
previous 120-day period. Each report submitted under this 
section shall include a description of any incidents of non-
compliance with an order issued under section 105B(e), 
including incidents of non-compliance by--
          (1) an element of the intelligence community with 
        minimization procedures referred to in section 
        105B(e)(1)(E)(i);
          (2) an element of the intelligence community with 
        procedures referred to in section 105B(e)(1)(E)(ii);
          (3) an element of the intelligence community with 
        guidelines referred to in section 105B(e)(1)(E)(iii); 
        and
          (4) a person directed to provide information, 
        facilities, or technical assistance under such order.
  (d) Report on Emergency Authority.--The Director of National 
Intelligence and the Attorney General shall annually submit to 
the appropriate committees of Congress a report containing the 
number of emergency authorizations of acquisitions under 
section 105C and a description of any incidents of non-
compliance with an emergency authorization under such section.
  (e) Appropriate Committees of Congress Defined.--In this 
section, the term ``appropriate committees of Congress'' 
means--
          (1) the Permanent Select Committee on Intelligence of 
        the House of Representatives;
          (2) the Select Committee on Intelligence of the 
        Senate; and
          (3) the Committees on the Judiciary of the House of 
        Representatives and the Senate.

[Effective on December 31, 2009, section 12(a)(1) of H.R. 3773 provides 
 that sections 105A, 105B, 105C, and 105D of the Foreign Intelligence 
Surveillance Act of 1978 are repealed (including the items relating to 
such sections in the table of contents in the first section).]

           *       *       *       *       *       *       *


                              ----------                              


PROTECT AMERICA ACT OF 2007

           *       *       *       *       *       *       *


[SEC. 4. REPORTING TO CONGRESS.

  [On a semi-annual basis the Attorney General shall inform the 
Select Committee on Intelligence of the Senate, the Permanent 
Select Committee on Intelligence of the House of 
Representatives, the Committee on the Judiciary of the Senate, 
and the Committee on the Judiciary of the House of 
Representatives, concerning acquisitions under this section 
during the previous 6-month period. Each report made under this 
section shall include--
          [(1) a description of any incidents of non-compliance 
        with a directive issued by the Attorney General and the 
        Director of National Intelligence under section 105B, 
        to include--
                  [(A) incidents of non-compliance by an 
                element of the Intelligence Community with 
                guidelines or procedures established for 
                determining that the acquisition of foreign 
                intelligence authorized by the Attorney General 
                and Director of National Intelligence concerns 
                persons reasonably to be outside the United 
                States; and
                  [(B) incidents of noncompliance by a 
                specified person to whom the Attorney General 
                and Director of National Intelligence issue a 
                directive under this section; and
          [(2) the number of certifications and directives 
        issued during the reporting period.]

           *       *       *       *       *       *       *


[SEC. 6. EFFECTIVE DATE; TRANSITION PROCEDURES.

  [(a) Effective Date.--Except as otherwise provided, the 
amendments made by this Act shall take effect immediately after 
the date of the enactment of this Act.
  [(b) Transition Procedures.--Notwithstanding any other 
provision of this Act, any order in effect on the date of 
enactment of this Act issued pursuant to the Foreign 
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) 
shall remain in effect until the date of expiration of such 
order, and, at the request of the applicant, the court 
established under section 103(a) of such Act (50 U.S.C. 
1803(a)) shall reauthorize such order as long as the facts and 
circumstances continue to justify issuance of such order under 
the provisions of the Foreign Intelligence Surveillance Act of 
1978, as in effect on the day before the applicable effective 
date of this Act. The Government also may file new 
applications, and the court established under section 103(a) of 
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
1803(a)) shall enter orders granting such applications pursuant 
to such Act, as long as the application meets the requirements 
set forth under the provisions of such Act as in effect on the 
day before the effective date of this Act. 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 extinguish any extant authorization to conduct 
electronic surveillance or physical search entered pursuant to 
such Act. Any surveillance conducted pursuant to an order 
entered under this subsection shall be subject to the 
provisions of the Foreign Intelligence Surveillance Act of 1978 
(50 U.S.C. 1801 et seq.), as in effect on the day before the 
effective date of this Act.
  [(c) Sunset.--Except as provided in subsection (d), sections 
2, 3, 4, and 5 of this Act, and the amendments made by this 
Act, shall cease to have effect 180 days after the date of the 
enactment of this Act.
  [(d) Authorizations in Effect.--Authorizations for the 
acquisition of foreign intelligence information pursuant to the 
amendments made by this Act, and directives issued pursuant to 
such authorizations, shall remain in effect until their 
expiration. Such acquisitions shall be governed by the 
applicable provisions of such amendments and shall not be 
deemed 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)).]

                            Dissenting Views

    In August, Congress passed the ``Protect America Act of 
2007,'' which filled a gap in existing law. The bill: (1) 
affirmed well-established law that neither the Constitution nor 
federal law requires a court order to gather foreign 
communications from foreign terrorists; (2) adopted flexible 
procedures to collect foreign intelligence from foreign 
terrorists overseas; and (3) provided for court review of 
collection procedures under this new authority. The Director of 
National Intelligence Admiral Mike McConnell made it clear that 
these reforms were essential for the Intelligence Community to 
protect America from terrorist attack.\1\ The majority in large 
part acceded to Admiral McConnell's request but tacked on a 
180-day sunset provision.
---------------------------------------------------------------------------
    \1\ Admiral McConnell's intelligence and national security career 
spans over 30 years. He has served under both Democratic and Republican 
Presidents, including as the Director of the National Security Agency 
in the Clinton Administration. Despite his impressive, non-partisan 
service in the Intelligence Community, Democrats have impugned his 
motives and his integrity purely for partisan gain. Such criticisms are 
unfair and distract from what should be a non-partisan issue--
protecting our country from terrorist attacks.
---------------------------------------------------------------------------
    Admiral McConnell has explained to Congress for more than a 
year that due to recent FISA court decisions, the government 
must now devote substantial resources to obtaining court 
approvals--based on a showing of probable cause--to conduct 
surveillance against terrorists located overseas in some 
circumstances. This is contrary to what Congress intended when 
it enacted FISA and has come about simply because of a change 
in technology. The government does not know in advance whom 
these terrorists will talk to and needs to have the flexibility 
to monitor calls that may occur between a foreign terrorist and 
a terrorist inside the United States. Such monitoring of these 
communications can be conducted with well-established 
minimization rules that have been applied to restrict any 
unwarranted intrusion on the civil liberties of any United 
States citizens. Requiring specific applications and authority 
for surveillance of such communications would impose burdens 
and delays with possible catastrophic consequences.
    Some groups and newspaper editors have, in the name of 
protecting civil liberties, spent the last month spreading 
false allegations and misconceptions about foreign surveillance 
to foster opposition to the Protect America Act. Such claims 
are irresponsible.
    We are a nation at war with foreign terrorists who continue 
to plan deadly attacks against America. The safety of Americans 
depends on action by Congress. Foreign terrorists are committed 
to the destruction of our country. To defeat them, our 
Intelligence Community must have the necessary tools to detect 
and disrupt such attacks.
    We have a responsibility in Congress to prevent attacks 
against our country and protect our communities and our 
families. Civil liberties are the foundation of our freedom, 
but such freedom will never exist if we have no security. We 
all cherish our individual liberties. But our liberties cannot 
flourish without security. The pursuit of life, liberty and 
happiness can only occur with peace of mind and a safe and 
secure country.
    This fall we had two full Judiciary Committee hearings on 
the Protect America Act. Admiral McConnell testified that prior 
to the Act, the Intelligence Community was not collecting 
approximately two-thirds of the foreign intelligence 
information that it used to collect before recent legal 
interpretations required the government to obtain FISA court 
orders for overseas surveillance. In addition, Admiral 
McConnell urged Congress to enact the Administration's FISA 
modernization legislation submitted in April.
    The RESTORE Act of 2007 ignores the Administration's April 
submission and Admiral McConnell's testimony at the oversight 
hearing. It would significantly limit the Intelligence 
Community from conducting foreign intelligence collection, 
improperly inject the FISA court into review of operational 
details and expand oversight responsibilities to unqualified 
entities.
    It is striking how the majority has acted when it comes to 
protecting our country from terrorists, spies and other 
enemies. These are not issues that should be sacrificed to 
talking points, politics and the satisfaction of liberal 
lobbying interests. We should be passing effective bipartisan 
legislation, supported by Admiral McConnell, to protect our 
national security.
    Telecommunications technology has evolved rapidly in the 
last 30 years. Terrorist tactics are constantly changing in 
response to our efforts to disrupt their plots. Essential tools 
that we use must be modernized to keep up with the changing 
environment.
    The American people understand what is at stake--nearly 60 
percent of Americans polled on the subject of FISA reform 
supported the Protect America Act. Less than 35 percent opposed 
it. The simple fact is that Americans support surveillance of 
foreign terrorists when they contact persons in the United 
States.
    The RESTORE Act in fact restores nothing. The safety of 
Americans depends on responsible action by Congress. The 
majority has ignored the need for modernizing the Foreign 
Intelligence Surveillance Act. Rather, it has adopted rhetoric 
that boils down to political cover at the expense of national 
security.
    The RESTORE Act is flawed in so many respects that we will 
address only the most significant problems with the bill.
    First, the RESTORE Act requires the Intelligence Community 
to obtain FISA court orders for foreign communications of 
persons reasonably believed to be outside the United States. 
Since it was enacted in 1978, FISA never required the 
government to acquire court orders for such communications, and 
the legislative history and subsequent Court decisions support 
that view. It is irresponsible to extend constitutional 
protections under the 4th Amendment to terrorists, spies and 
other enemies overseas--an unprecedented act that will threaten 
our country's security.
    At the oversight hearing, Admiral McConnell stated that 
such a solution is unworkable and impractical. He explained 
that this was not because of a ``resource'' limitation but was 
because of the need to collect and analyze foreign intelligence 
information on a timely basis so that threats can be identified 
and acted upon.
    FISA does not require a court order to gather foreign 
communications between foreign terrorists outside the United 
States. The majority repeats this undisputed fact to deflect 
discussion of the real issue--should FISA require a court order 
when a foreign terrorist communicates with an unknown person at 
an unknown location? The RESTORE Act says yes. The Intelligence 
Community and 30 years of experience under FISA say no. For the 
last 30 years FISA never required such an order, and the 
majority's push now to require a court order threatens our 
nation's safety.
    The majority shows no concern for the impact such a 
requirement will have on the Intelligence Community. Requiring 
a court order for every phone call from a foreign target to a 
person inside the U.S. is contrary to FISA as it has operated 
for 30 years and contrary to common sense--how can the 
Intelligence Community anticipate a communication from a 
foreign terrorist to a terrorist inside our country?
    In much the same way as a criminal wiretap, FISA provides--
and has provided for 30 years--specific minimization procedures 
to protect the privacy of persons inside the United States with 
whom a foreign target may communicate. It is unclear why now, 
after all this time, the majority now seeks to dismantle rather 
than modernize FISA.
    Requiring separate FISA authority for these calls would be 
a deadly mistake. Calls between a foreign terrorist and a 
person located inside the United States should be minimized in 
accordance with well established procedures. To do otherwise is 
to jeopardize the safety of our nation.
    Second, the RESTORE Act omits any retrospective liability 
protection for telephone companies and other carriers that 
assisted the government after September 11, 2001. These 
companies deserve our thanks, not a flurry of lawsuits seeking 
access to documents the disclosure of which would harm our 
country. The majority promised Admiral McConnell that this 
issue would be addressed in this legislation, and the majority 
has reneged on its promise.
    Third, the RESTORE Act injects the FISA Court into 
reviewing and approving the Intelligence Community's procedures 
for (1) minimization; and (2) ``guidelines'' for determining 
that there is a reasonable basis to believe that the telephone 
is located outside the United States. This is unprecedented and 
will only burden the Intelligence Community with court review 
of operational details that will only delay FISA court approval 
of surveillance orders, all to the detriment of our security.
    Fourth, the RESTORE Act authorizes the FISA court to 
conduct wholesale reviews of how the Intelligence Community 
``acquires, retains and disseminates'' foreign intelligence 
information. The FISA court plays a critical role in providing 
judicial review of the government's FISA applications in 
specific cases. But this proposed expansion gives the Court a 
``super-supervision'' role that is inappropriate and 
unnecessary.
    Fifth, the RESTORE Act inexplicably creates a new sunset--
December 31, 2009. This is a mistake. If Congress needs to 
change the law, then it should do so, notwithstanding any 
sunset. Terrorists do not lay down their arms or change their 
objectives when a sunset fast approaches, and neither should 
the United States abandon tools on a date certain in the 
future.
    Sixth, the RESTORE Act requires the Justice Department's 
Inspector General to conduct (1) quarterly audits of the 
Intelligence Community's compliance with the requirements of 
the new Act; and (2) an audit of all surveillance activities 
conducted without a warrant after September 11, 2001. We 
respect the DOJ IG's work on a number of issues. However, the 
DOJ IG does not have the expertise or knowledge of the FISA 
process, the Intelligence Community's activities, and inner-
workings of various agencies to be able to conduct meaningful 
reviews. Moreover, the intelligence agencies (e.g. CIA, NSA) 
already have Inspector Generals who conduct regular audits and 
will continue to do so even if this provision was enacted.
    Seventh, the RESTORE Act requires the DNI and the Justice 
Department to submit reports every 120 days on foreign 
surveillance operations, including any instance of non-
compliance with any court requirement. The DNI and Justice 
Department are already required to provide detailed information 
on such surveillance to the Senate and House Intelligence 
Committees, and there is no need to increase that requirement.
    Lastly, the RESTORE Act requires the Justice Department and 
the Intelligence Community to create a new database that 
records every instance in which the identity of a United States 
person whose communications was collected is disclosed to other 
agencies and for what purpose. This proposal is misguided--
while attempting to protect American's civil liberties, it may 
have the opposite effect by establishing a single database that 
lists all Americans who have been identified in foreign 
intelligence information and whose identity has been disclosed 
to other agencies.
    Such disclosures may not reflect that the person has been 
identified as a suspected terrorist or a spy; it may be that 
the person's identity is a lead needed to collect important 
information concerning another person's activities. The 
majority does not explain why such a database is needed, why 
such records are important, and how such records will be 
protected from unauthorized or inadvertent disclosures.
    We can only hope that the majority will take the RESTORE 
Act and go back to the drawing board. As currently drafted, the 
majority's proposal is irresponsible, ignores well-established 
practices governing the collection of foreign intelligence 
information, and in the end will embolden and enhance our 
enemies' ability to carry out deadly plots without fear of 
being detected.
    We should maintain our commitment to winning the war 
against terrorism. George Washington once said, ``There is 
nothing so likely to produce peace as to be well prepared to 
meet the enemy.'' Heeding his words, we must maintain our 
commitment to winning the war against terrorism.

                           FISA MODERNIZATION

    Last April, Admiral McConnell submitted to Congress a 
comprehensive proposal to modernize FISA. That proposal should 
have been enacted.
    When Congress drafted FISA in 1978, it framed critical 
definitions (most importantly, the definition of ``electronic 
surveillance'') in terms of the specific communications 
technology in use at the time. As a result, the application of 
FISA depends heavily on the technology used to communicate. 
Sweeping changes in telecommunications technology have occurred 
since 1978. These changes were not and could not have been 
anticipated by Congress.
    The Administration's proposed bill would amend the 
definition of ``electronic surveillance'' in a manner that 
restores FISA's original focus on the domestic communications 
of persons within the United States. Importantly, the amended 
definition would not depend on the technologies now in use and 
would continue to maintain the right focus as technology 
changes.
    The bill also streamlines the FISA application process. It 
would eliminate the unnecessary burden that the current statute 
places on the government. Applications should contain only the 
information the FISA Court needs to make its determinations.
    The bill would provide liability protection to 
communications providers that are alleged to have assisted the 
government with authorized intelligence activities since 9/11. 
Those companies deserve our appreciation--not a deluge of 
lawsuits.
    In addition, the bill would amend the definition of ``agent 
of a foreign power'' to allow surveillance of non-US persons 
who possess significant foreign intelligence information. The 
bill also would modify the definition to include persons who 
engage in the proliferation of weapons of mass destruction.
    Finally, the bill would provide for the transfer of cases 
involving the legality of classified communications 
intelligence activities from regular courts to the FISA Court. 
This will help protect classified information and allow cases 
to proceed before the court most familiar with communications 
intelligence activities and most practiced in safeguarding the 
type of national security information involved.

                               AMENDMENTS

    Republican Members offered two amendments at markup. The 
first, offered by Mr. Forbes of Virginia, was an amendment in 
the nature of a substitute that incorporated the 
Administration's FISA modernization proposal. The second, 
offered by Mr. Gohmert of Texas, struck sections 3 and 4 of the 
underlying bill. Both amendments were defeated by recorded 
vote. Below is a summary of the substitute amendment.
    Section 1. Short Title. This section cites the title of the 
Act as the ``Foreign Intelligence Surveillance Modernization 
Act of 2007.''
    Section 2. Definitions. This section amends the definition 
of ``agent of a foreign power'' to include non-United States 
persons who possess or receive significant foreign intelligence 
information while in the United States. This amendment would 
ensure that the United States government can collect necessary 
information possessed by a non-United States person visiting 
the United States.
    This section also redefines the term ``electronic 
surveillance'' in a technology-neutral manner to refocus FISA 
on the communications of individuals in the United States. When 
FISA was enacted in 1978, Congress used language that was 
technology-dependent and related specifically to the 
telecommunications systems that existed at that time. As a 
result of revolutions in communications technology since 1978, 
and not any considered judgment of Congress, the current 
definition of ``electronic surveillance'' sweeps in 
surveillance activities that Congress actually intended to 
exclude from FISA's scope.
    Section 2 provides a new, technology-neutral definition of 
``electronic surveillance'' focused on the core question of who 
is the subject of the surveillance, rather than on how or where 
the communication is intercepted. Under the amended definition, 
``electronic surveillance'' would encompass:

        (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 located within 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.

    Finally, section 2 also amends the definition of the terms 
``minimization procedures'' and ``content'' to conform to other 
changes in this proposal or provisions in Title 18.
    Section 3. Attorney General Authorization for Electronic 
Surveillance. This section alters the circumstances in which 
the Attorney General can exercise his authority--present in 
FISA since its passage--to authorize electronic surveillance 
without a court order. Currently, subsection 102(a) of FISA 
allows the Attorney General to authorize electronic 
surveillance without a court order where the surveillance is 
``solely directed'' at the acquisition of the contents of 
communications ``transmitted by means of communications used 
exclusively'' between or among certain types of traditional 
foreign powers.
    As a consequence, the government must generally seek FISA 
Court approval for the same sort of surveillance today. It is 
important to note that the proposed amendment to this provision 
of FISA would not alter the types of ``foreign powers'' to 
which this authority applies. It still would apply only to 
foreign governments, factions of foreign nations (not 
substantially composed of United States persons), and entities 
openly acknowledged by a foreign government to be directed and 
controlled by a foreign government or governments.
    This section also creates new procedures (those proposed in 
new sections 102A and 102B) pursuant to which the Attorney 
General could authorize the acquisition of foreign intelligence 
information concerning persons reasonably believed to be 
outside the United States, under circumstances in which the 
acquisition does not constitute ``electronic surveillance'' 
under FISA.
    This critical change works hand in glove with the new 
definition of ``electronic surveillance'' in section 2. FISA 
currently provides a mechanism for the government to obtain a 
court order compelling communications companies to assist in 
conducting electronic surveillance. Because the proposed 
legislation would reduce the scope of the definition of 
``electronic surveillance,'' certain activities that previously 
were ``electronic surveillance'' under FISA would fall out of 
the statute's scope. This new provision would provide a 
mechanism for the government to obtain the aid of a court to 
ensure private sector cooperation with these lawful 
intelligence activities no longer covered by the definition of 
``electronic surveillance.'' The new section would also provide 
a means for third parties receiving such a directive to 
challenge the legality of that directive in court.
    Section 4. Jurisdiction of FISA Court. This section makes 
two relatively minor amendments to FISA. First, it amends 
section 103(a) of FISA to provide that judges on the FISA Court 
shall be drawn from ``at least seven'' of the United States 
judicial circuits. The current requirement--that judges be 
drawn from seven different judicial circuits--unnecessarily 
complicates the designation of judges for that important court.
    This section also moves to section 103 of FISA, with minor 
amendments, a provision that currently appears in section 102. 
New section 103(g) would provide that applications for a court 
order under section 104 of FISA are authorized if the Attorney 
General approves the applications to the FISA Court, and a 
judge to whom the application is made may grant an order 
approving electronic surveillance in accordance with the 
statute--a provision that is most suitably placed in section 
103 of FISA, which pertains to the FISA Court's jurisdiction.
    The new provision would eliminate the restriction on the 
FISA Court's jurisdiction in 50 U.S.C. Sec. 1802(b), which 
provides that the court cannot grant an order approving 
electronic surveillance directed at the types of foreign powers 
described in section 102(a) unless the surveillance may involve 
the acquisition of communications of a United States person. 
Although the government still would not be required to obtain 
FISA Court orders for surveillance involving those types of 
foreign powers, the removal of this restriction would permit 
the government to seek FISA Court orders in those circumstances 
when an order is desirable.
    Section 5. Application for Court Orders. The current 
procedure for applying to the FISA Court for a surveillance 
order under section 104 of FISA should be streamlined. While 
FISA should require the government to provide information 
necessary to establish probable cause and other essential FISA 
requirements, FISA requires the government to provide 
information that is not necessary to these objectives. Section 
5 attempts to increase the efficiency of the FISA application 
process in several ways.
    First, the government currently is required to provide 
significant amounts of information that serves little or no 
purpose in safeguarding civil liberties. By amending FISA to 
require only summary descriptions or statements of certain 
information, the burden imposed on applicants for a FISA Court 
order authorizing surveillance will be substantially reduced. 
For example, section 5 amends the current FISA provision 
requiring that the application contain a ``detailed description 
of the nature of the information sought,'' and would allow the 
government to submit a summary description of such information.
    Section 5 similarly would amend the current requirement 
that the application contain a ``statement of facts concerning 
all previous applications'' involving the target, and instead 
would permit the government to provide a summary of those 
facts. While these amendments would help streamline FISA by 
reducing the burden involved in providing the FISA Court with 
information that is not necessary to protect the privacy of 
U.S. persons in the United States, the FISA Court would still 
receive the information it needs in considering whether to 
authorize the surveillance.
    Section 5 also increases the number of individuals who can 
make FISA certifications. Currently, FISA requires that such 
certifications be made only by senior Executive Branch national 
security officials who have been confirmed by the Senate. The 
new provision would allow certifications to be made by 
individuals specifically designated by the President and would 
remove the restriction that such individuals be Senate-
confirmed. As this committee is aware, many intelligence 
agencies have an exceedingly small number of Senate confirmed 
officials (sometimes only one, or even none), and the 
Administration's proposal would allow intelligence agencies to 
more expeditiously obtain certifications.
    Section 6. Issuance of an Order. This section amends the 
procedures for the issuance of an order under section 105 of 
FISA to conform with the changes to the application 
requirements that would be effected by changes to section 104 
discussed above.
    This section also extends the initial term of authorization 
for electronic surveillance of a non-United States person who 
is an agent of a foreign power from 120 days to one year. This 
change reduces the time spent preparing applications for 
renewals relating to non-United States persons, thereby 
allowing more resources to be devoted to cases involving United 
States persons.
    Section 6 also allows any FISA order to be extended for a 
period of up to one year. This change reduces the time spent 
preparing applications to renew FISA orders that already have 
been granted by the FISA Court, thereby increasing the 
resources focused on initial FISA applications. Additionally, 
section 6 makes important amendments to the procedures by which 
the Executive Branch may initiate emergency authorizations of 
electronic surveillance prior to obtaining a court order. 
Currently the Executive Branch has 72 hours to obtain court 
approval after emergency surveillance is initially authorized 
by the Attorney General. The amendment extends the emergency 
period to seven days. This change will help ensure that the 
Executive Branch has sufficient time in an emergency situation 
to accurately prepare an application, obtain the required 
approvals of senior officials, apply for a court order, and 
satisfy the court that the application should be granted.
    This provision also modifies the existing provision that 
allows certain information to be retained when the FISA Court 
rejects an application to approve an emergency authorization. 
Presently, such information can be retained if it indicates a 
threat of death or serious bodily harm to any person. The 
proposed amendment would also permit such information to be 
retained if the information is ``significant foreign 
intelligence information'' that, while important to the 
security of the country, may not rise to the level of death or 
serious bodily harm.
    Finally, section 6 adds a new paragraph that requires the 
FISA Court, when granting an application for electronic 
surveillance, to simultaneously authorize the installation and 
use of pen registers and trap and trace devices if such is 
requested by the government. This technical amendment results 
from the proposed change in the definition of ``contents'' in 
Title I of FISA. And, of course, as the standard to obtain a 
court order for electronic surveillance is substantially higher 
than the pen-register standard, there should be no objection to 
an order approving electronic surveillance that also 
encompasses pen register and trap and trace information.
    Section 7. Use of Information. This section amends 
subsection 106(i) of FISA, which pertains to limitations 
regarding the use of unintentionally acquired information. 
Currently, subsection 106(i) provides that lawfully but 
unintentionally acquired radio communications between persons 
located in the United States must be destroyed unless the 
Attorney General determines that the communications indicate a 
threat of death or serious bodily harm. Section 7 amends 
subsection 106(i) by making it technology-neutral; we believe 
that the same rule should apply regardless how the 
communication is transmitted. The amendment also allows for the 
retention of unintentionally acquired information if it 
``contains significant foreign intelligence information.'' This 
ensures that the government can retain and act upon valuable 
foreign intelligence information that is collected 
unintentionally, rather than being required to destroy all such 
information that does not fall within the current exception.
    Section 7 also clarifies that FISA does not preclude the 
government from seeking protective orders or asserting 
privileges ordinarily available to protect against the 
disclosure of classified information. This is necessary to 
clarify any ambiguity regarding the availability of such 
protective orders or privileges in litigation.
    Section 8. Weapons of Mass Destruction. This section amends 
sections 101, 106, and 305 of FISA to address concerns related 
to weapons of mass destruction. These amendments reflect the 
threat posed by these catastrophic weapons and would extend 
FISA to apply to individuals and groups engaged in the 
international proliferation of such weapons. Section 8 amends 
section 101 of FISA to include a definition of the term 
``weapon of mass destruction.''
    Section 8 also amends the section 101 definitions of 
``foreign power'' and ``agent of a foreign power'' to include 
groups and individuals (other than U.S. persons) engaged in the 
international proliferation of weapons of mass destruction. 
Section 8 similarly amends the definition of ``foreign 
intelligence information.'' Finally, section 8 would amend 
sections 106 and 305 of FISA, which pertain to the use of 
information, to include information regarding the international 
proliferation of weapons of mass destruction.
    Section 9. Liability Defense. This section provides 
litigation protections to telecommunications companies that are 
alleged to have assisted the government with classified 
communications intelligence activities in the wake of the 
September 11th terrorist attacks. Telecommunications companies 
have faced numerous lawsuits as a result of their alleged 
activities in support of the government's efforts to prevent 
another terrorist attack. If private industry partners are 
alleged to cooperate with the government to ensure our nation 
is protected against another attack, they should not be held 
liable for any assistance they are alleged to have provided.
    Section 10. Amendments for Physical Searches. This section 
amends section 303 of FISA (50 U.S.C. 1823), which relates to 
physical searches, to streamline the application process, 
update and augment the emergency authorization provisions, and 
increase the potential number of officials who can certify FISA 
applications. These changes largely parallel those proposed to 
the electronic surveillance application process. For instance, 
they include amending the procedures for the emergency 
authorization of physical searches without a court order to 
allow the executive branch seven days to obtain court approval 
after the search is initially authorized by the Attorney 
General.
    This section also amends section 304 of FISA, pertaining to 
orders authorizing physical searches, to conform to the changes 
intended to streamline the application process. Additionally, 
section 10 permits the search of not only property that is 
owned, used, possessed by, or in transit to or from a foreign 
power or agent of a foreign power, but also property that is 
about to be owned, used, possessed by, or in transit to or from 
these powers or agents. This change makes the scope of FISA's 
physical search provisions coextensive with FISA's electronic 
surveillance provisions in this regard.
    Section 11. Amendments for Emergency Pen Registers and Trap 
and Trace Devices. This section amends the procedures found in 
section 403 of FISA (50 U.S.C. 1843) regarding the emergency 
use of pen registers and trap and trace devices without court 
approval to allow the executive branch seven days to obtain 
court approval after the emergency use is initially authorized 
by the Attorney General. (The current period is 48 hours.) This 
change would ensure the same flexibility for these techniques 
as would be available for electronic surveillance and physical 
searches.
    Section 12. Mandatory Transfer for Review. This section 
allows for the transfer of sensitive national security 
litigation to the FISA Court in certain circumstances. This 
provision requires a court to transfer a case to the FISA Court 
if: (1) the case is challenging the legality of a classified 
communications intelligence activity relating to a foreign 
threat, or the legality of any such activity is at issue in the 
case, and (2) the Attorney General files an affidavit under 
oath that the case should be transferred because further 
proceedings in the originating court would harm the national 
security of the United States.
    By providing for the transfer of such cases to the FISA 
Court, section 12 ensures that, if needed, judicial review may 
proceed before the court most familiar with communications 
intelligence activities and most practiced in safeguarding the 
type of national security information involved. Section 12 also 
provides that the decisions of the FISA Court in cases 
transferred under this provision would be subject to review by 
the FISA Court of Review and the Supreme Court of the United 
States.
    Section 13. Technical and Conforming Amendments. This 
section makes technical and conforming amendments to sections 
103, 105, 106, and 108 of FISA (50 U.S.C. 1803, 1805, 1806, 
1808).
    Section 14. Effective Date. This section provides that 
these amendments shall take effect 90 days after the date of 
enactment of the Act, and that orders in effect on that date 
shall remain in effect until the date of expiration. It would 
allow for a smooth transition after the proposed changes take 
effect.
    Section 15. Construction; Severability. This section 
provides that any provision of this Act held to be invalid or 
unenforceable shall be construed so as to give it the maximum 
effect permitted by law, unless doing so results in a holding 
of utter invalidity or unenforceability, in which case the 
provision shall be deemed severable and shall not affect the 
remaining sections.

                                SUMMARY

    For all of these reasons, we urge our colleagues to reject 
the RESTORE Act and enact the Administration's proposal. The 
lives of Americans depend on it.

                                   Lamar Smith.
                                   F. James Sensenbrenner, Jr.
                                   Howard Coble.
                                   Elton Gallegly.
                                   Steve Chabot.
                                   Daniel E. Lungren.
                                   Chris Cannon.
                                   Darrell Issa.
                                   J. Randy Forbes.
                                   Tom Feeney.
                                   Louie Gohmert.
                                   Jim Jordan.

                                  
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