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



110th Congress                                            Rept. 110-373
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     Part 2

======================================================================
 
  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. Reyes, from the Permanent Select Committee on Intelligence, 
                        submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 3773]

      [Including cost estimate of the Congressional Budget Office]

  The Permanent Select Committee on Intelligence, 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.
  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. Foreign Intelligence Surveillance Court matters.
Sec. 8. Reiteration of chapters 119 and 121 of title 18, United States 
Code, and Foreign Intelligence Surveillance Act of 1978 as exclusive 
means by which domestic electronic surveillance may be conducted.
Sec. 9. Enhancement of electronic surveillance authority in wartime and 
other collection.
Sec. 10. Audit of warrantless surveillance programs.
Sec. 11. Record-keeping system on acquisition of communications of 
United States persons.
Sec. 12. Authorization for increased resources relating to foreign 
intelligence surveillance.
Sec. 13. Additional personnel for preparation and consideration of 
applications for orders approving electronic surveillance and physical 
search.
Sec. 14. Document management system for applications for orders 
approving electronic surveillance.
Sec. 15. Training of intelligence community personnel in foreign 
intelligence collection matters.
Sec. 16. Information for Congress on the terrorist surveillance program 
and similar programs.
Sec. 17. Technical and conforming amendments.
Sec. 18. 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 United States 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 United States 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 
        court established under section 103(a) shall, not less 
        frequently than once each quarter, 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 United States 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 copy of the 
        application, including the certification made under section 
        105B(b)(1); 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. FOREIGN INTELLIGENCE SURVEILLANCE COURT MATTERS.

  (a) Authority for Additional Judges.--Section 103(a) of the Foreign 
Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a)) is amended--
          (1) by inserting ``(1)'' after ``(a)'';
          (2) in paragraph (1) (as so designated)--
                  (A) by striking ``11'' and inserting ``15''; and
                  (B) by inserting ``at least'' before ``seven of the 
                United States judicial circuits''; and
          (3) by designating the second sentence as paragraph (3) and 
        indenting such paragraph, as so designated.
  (b) Consideration of Emergency Applications.--Such section is further 
amended by inserting after paragraph (1) (as designated by subsection 
(a)(1)) the following new paragraph:
  ``(2) A judge of the court shall make a determination to approve, 
deny, or modify an application submitted pursuant to section 105(f), 
section 304(e), or section 403 not later than 24 hours after the 
receipt of such application by the court.''.

SEC. 8. REITERATION OF CHAPTERS 119 AND 121 OF TITLE 18, UNITED STATES 
                    CODE, AND FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 
                    1978 AS EXCLUSIVE MEANS BY WHICH DOMESTIC 
                    ELECTRONIC SURVEILLANCE MAY BE CONDUCTED.

  (a) Exclusive Means.--Section 2511(2)(f) of title 18, United States 
Code, is amended by striking ``and procedures in this chapter'' and all 
that follows and inserting ``and procedures in this chapter, chapters 
121 and 206, and the Foreign Intelligence Surveillance Act of 1978 (50 
U.S.C. 1801 et seq.) shall be the exclusive means by which electronic 
surveillance (as defined in section 101(f) of such Act), the 
interception of domestic wire, oral, and electronic communications, the 
accessing of stored electronic communications, and the installation and 
use of pen registers and trap and trace devices may be conducted.''.
  (b) Amendment to Foreign Intelligence Surveillance Act of 1978.--
          (1) Section 109(a).--Section 109(a) of the Foreign 
        Intelligence Surveillance Act of 1978 (50 U.S.C. 1809(a)) is 
        amended by striking ``authorized by statute'' each place it 
        appears and inserting ``authorized by title I or IV of the 
        Foreign Intelligence Surveillance Act (50 U.S.C. 1801-1811 and 
        1841-1846), or chapter 119, 121, or 206 of title 18, United 
        States Code''
          (2) Section 307(a).--Section 307(a)(1) of the Foreign 
        Intelligence Surveillance Act of 1978 (50 U.S.C. 1827(a)) is 
        amended by striking ``as authorized by statute'' and inserting 
        ``as authorized by title III of the Foreign Intelligence 
        Surveillance Act (50 U.S.C. 1821-1829) or Rule 41 of the 
        Federal Rules of Criminal Procedure or any other warrant issued 
        by a court of competent jurisdiction''.
  (c) Amendment to Title 18, United States Code.--Section 
2511(2)(a)(ii)(B) of title 18, United States Code, is amended by 
striking ``statutory requirements'' and inserting ``requirements under 
this chapter, chapters 121 and 206, and titles I and IV of the Foreign 
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.)''.

SEC. 9. ENHANCEMENT OF ELECTRONIC SURVEILLANCE AUTHORITY IN WARTIME AND 
                    OTHER COLLECTION.

   Sections 111, 309, and 404 of the Foreign Intelligence Surveillance 
Act of 1978 (50 U.S.C. 1811, 1829, and 1844) are amended by striking 
``Congress'' and inserting ``Congress or an authorization for the use 
of military force described in section 2(c)(2) of the War Powers 
Resolution (50 U.S.C. 1541(c)(2)) if such authorization contains a 
specific authorization for foreign intelligence collection under this 
section, or if the Congress is unable to convene because of an attack 
upon the United States''.

SEC. 10. 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. 11. 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. 12. 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 10; and
          (3) the record-keeping system and reporting requirements 
        under section 11.

SEC. 13. ADDITIONAL PERSONNEL FOR PREPARATION AND CONSIDERATION OF 
                    APPLICATIONS FOR ORDERS APPROVING ELECTRONIC 
                    SURVEILLANCE AND PHYSICAL SEARCH.

  (a) Office of Intelligence of the National Security Division.--
          (1) Additional personnel.--The Office of Intelligence of the 
        National Security Division of the Department of Justice is 
        hereby authorized such additional personnel as may be necessary 
        to carry out the prompt and timely preparation, modification, 
        and review of applications under Foreign Intelligence 
        Surveillance Act of 1978 for orders under that Act for foreign 
        intelligence purposes.
          (2) Assignment.--The Attorney General shall assign personnel 
        authorized by paragraph (1) to and among appropriate offices of 
        the intelligence community (as defined in section 3(4) of the 
        National Security Act of 1947 (50 U.S.C. 401a(4))) in order 
        that such personnel may directly assist personnel of the 
        Intelligence Community in preparing applications described in 
        that paragraph and conduct prompt and effective oversight of 
        the activities of such agencies under Foreign Intelligence 
        Surveillance Court orders.
  (b) Director of National Intelligence.--
          (1) Additional legal and other personnel.--The Director of 
        National Intelligence is hereby authorized such additional 
        legal and other personnel as may be necessary to carry out the 
        prompt and timely preparation of applications under the Foreign 
        Intelligence Surveillance Act of 1978 for orders under that Act 
        approving electronic surveillance for foreign intelligence 
        purposes.
          (2) Assignment.--The Director of National Intelligence shall 
        assign personnel authorized by paragraph (1) to and among the 
        intelligence community (as defined in section 3(4) of the 
        National Security Act of 1947 (50 U.S.C. 401a(4))), including 
        the field offices of the Federal Bureau of Investigation, in 
        order that such personnel may directly assist personnel of the 
        intelligence community in preparing applications described in 
        that paragraph.
  (c) Additional Legal and Other Personnel for Foreign Intelligence 
Surveillance Court.--There is hereby authorized for the court 
established under section 103(a) of the Foreign Intelligence 
Surveillance Act of 1978 (50 U.S.C. 1803(a)) such additional staff 
personnel as may be necessary to facilitate the prompt and timely 
consideration by that court of applications under such Act for orders 
under such Act approving electronic surveillance for foreign 
intelligence purposes. Personnel authorized by this paragraph shall 
perform such duties relating to the consideration of such applications 
as that court shall direct.
  (d) Supplement Not Supplant.--The personnel authorized by this 
section are in addition to any other personnel authorized by law.

SEC. 14. DOCUMENT MANAGEMENT SYSTEM FOR APPLICATIONS FOR ORDERS 
                    APPROVING ELECTRONIC SURVEILLANCE.

  (a) System Required.--The Attorney General shall, in consultation 
with the Director of National Intelligence and the Foreign Intelligence 
Surveillance Court, develop and implement a secure, classified document 
management system that permits the prompt preparation, modification, 
and review by appropriate personnel of the Department of Justice, the 
Federal Bureau of Investigation, the National Security Agency, and 
other applicable elements of the United States Government of 
applications under the Foreign Intelligence Surveillance Act of 1978 
(50 U.S.C. 1804) before their submission to the Foreign Intelligence 
Surveillance Court.
  (b) Scope of System.--The document management system required by 
subsection (a) shall--
          (1) permit and facilitate the prompt submittal of 
        applications to the Foreign Intelligence Surveillance Court 
        under the Foreign Intelligence Surveillance Act of 1978; and
          (2) permit and facilitate the prompt transmittal of rulings 
        of the Foreign Intelligence Surveillance Court to personnel 
        submitting applications described in paragraph (1), and provide 
        for the secure electronic storage and retrieval of all such 
        applications and related matters with the court and for their 
        secure transmission to the National Archives and Records 
        Administration.

SEC. 15. TRAINING OF INTELLIGENCE COMMUNITY PERSONNEL IN FOREIGN 
                    INTELLIGENCE COLLECTION MATTERS.

  The Director of National Intelligence shall, in consultation with the 
Attorney General--
          (1) develop regulations to establish procedures for 
        conducting and seeking approval of electronic surveillance, 
        physical search, and the installation and use of pen registers 
        and trap and trace devices on an emergency basis, and for 
        preparing and properly submitting and receiving applications 
        and orders under the Foreign Intelligence Surveillance Act of 
        1978; and
          (2) prescribe related training on the Foreign Intelligence 
        Surveillance Act of 1978 and related legal matters for the 
        personnel of the applicable agencies of the intelligence 
        community (as defined in section 3(4) of the National Security 
        Act of 1947 (50 U.S.C. 401a(4))).

SEC. 16. INFORMATION FOR CONGRESS ON THE TERRORIST SURVEILLANCE PROGRAM 
                    AND SIMILAR PROGRAMS.

  As soon as practicable after the date of the enactment of this Act, 
but not later than seven days after such date, the President shall 
fully inform each member of the Permanent Select Committee on 
Intelligence of the House of Representatives and the Select Committee 
on Intelligence of the Senate on the following:
          (1) The Terrorist Surveillance Program of the National 
        Security Agency.
          (2) Any program in existence from September 11, 2001, until 
        the effective date of this Act that involves, whether in part 
        or in whole, the electronic surveillance of United States 
        persons in the United States for foreign intelligence or other 
        purposes, and which is conducted by any department, agency, or 
        other element of the United States Government, or by any entity 
        at the direction of a department, agency, or other element of 
        the United States Government, without fully complying with the 
        procedures set forth in the Foreign Intelligence Surveillance 
        Act of 1978 (50 U.S.C. 1801 et seq.) or chapter 119, 121, or 
        206 of title 18, United States Code.

SEC. 17. 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. 18. 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

    The purpose of the Responsible Electronic Surveillance That 
is Overseen, Reviewed, and Effective Act (``RESTORE Act'') is 
to arm the intelligence community with powerful new authorities 
to conduct electronic surveillance of targets outside the 
United States, while restoring essential Constitutional 
protections for Americans that were sharply eroded when the 
President signed into law the so-called Protect America Act in 
August 2007.

                     Committee Statement and Views


                            A. INTRODUCTION

    More than six years after the horrific attacks on September 
11, 2001, Osama bin Laden remains at large, and America 
continues to face an undiminished threat from al Qaeda and 
other radical Islamic terrorist organizations. The Committee 
believes that thwarting terrorist plots must remain the top 
priority for the U.S. intelligence community.
    Electronic surveillance is an essential ``early warning'' 
tool for disrupting terrorist plots. The RESTORE Act provides 
the U.S. intelligence community with additional authorities to 
conduct electronic surveillance on U.S. soil when the targets 
of the surveillance are non-Americans overseas.
    Authorizing this surveillance under a clear legal framework 
is essential, not only to ensure that law abiding Americans' 
private communications are protected, but also to provide 
clarity and legal protection to telecommunications companies 
that may be called upon to assist the government.
    Two Constitutional provisions guide Congressional 
regulation of electronic surveillance on U.S. soil.
    The first is Article I, Section 8, which states, ``The 
Congress shall have Power To . . . provide for the common 
Defence.'' This broad authority vests in Congress the power, 
and the duty, to ensure that our armed forces, intelligence 
professionals, and law enforcement agencies have the resources 
and legal authorities to protect the nation.
    The second guidepost is the Fourth Amendment, which states: 
``The right of the people to be secure in their persons, 
houses, papers, and effects, against unreasonable searches and 
seizures, shall not be violated, and no Warrants shall issue, 
but upon probable cause, supported by Oath or affirmation, and 
particularly describing the place to be searched, and the 
persons or things to be seized.''
    The RESTORE Act represents a careful balance between the 
duty to provide for the common defense and the simultaneous 
duty to protect innocent Americans from unlawful seizures of 
their private communications by the government.
    Some have suggested that protecting the Constitution would 
compromise the ``flexibility'' of the intelligence community to 
gain critical intelligence on our adversaries, that balancing 
security and liberty is a zero-sum game. The Committee firmly 
rejects that false choice. We do not believe that the only way 
to preserve American life is to sacrifice American liberty.
    Indeed, the preservation of our Constitution has made 
America strong and secure for more than 200 years, and that no 
one should be permitted to frighten, or terrorize, America into 
weakening our Constitution. To do so would be to hand the 
terrorists a victory. Others may wish to surrender to 
terrorists in this fashion; this Committee never will.

                 B. BACKGROUND AND NEED FOR LEGISLATION

    The Foreign Intelligence Surveillance Act (FISA) provides 
the legal framework for the government to collect specified 
types of foreign intelligence information.

1. FISA History

    The Foreign Intelligence Surveillance Act of 1978 responded 
to revelations that U.S. intelligence agencies had conducted 
warrantless electronic surveillance of Americans in the name of 
national security. These abuses were initially illuminated in 
1973 during the investigation of the Watergate break-in.\1\ Two 
years later the Senate Select Committee to Study Governmental 
Operations with Respect to Intelligence, chaired by Senator 
Church (the ``Church Committee''), concluded that every 
President since Franklin D. Roosevelt had conducted warrantless 
electronic surveillance, and that the National Security Agency 
had received from international cable companies ``millions of 
cables which had been sent by American citizens in the 
reasonable expectation that they would be kept private.'' \2\
---------------------------------------------------------------------------
    \1\ Legislative History P.L. 95-511, p. 3908.
    \2\ Final Report of the Select Committee to Study Governmental 
Operations with respect to Intelligence Activities, Book II, April 26, 
1976, p.12.
---------------------------------------------------------------------------
    The Church Committee found that surveillance activities 
were conducted either in the absence of a statutory framework 
or under extremely broad interpretations of applicable law. It 
traced the ``application of vague and elastic standards for 
wiretapping and bugging [that had] resulted in electronic 
surveillance which, by any objective measure, were improper and 
seriously infringed the Fourth Amendment Rights of both the 
targets and those with whom the targets communicated.'' \3\ It 
reported that, although the executive orders that govern NSA's 
activities prohibit the agency from monitoring communications 
between persons within the United States, ``NSA has interpreted 
`foreign communications' to include communication where one 
terminal is outside the United States.'' \4\
---------------------------------------------------------------------------
    \3\ Ibid, Book III, p. 32.
    \4\ Ibid, Book II, p. 104.
---------------------------------------------------------------------------
    The Church Committee report explained:

        Under this interpretation, NSA has, for many years, 
        intercepted communications . . . even though the sender 
        or receiver was an American. During the past decade, 
        NSA increasingly broadened its interpretation of 
        ``foreign intelligence.'' . . . The overall consequence 
        . . . was to break down the distinction between 
        ``foreign'' and ``domestic'' intelligence. For example, 
        in the 1960s, NSA began adding to its ``watch lists,'' 
        at the request of various intelligence agencies, the 
        names of American suspected of involvement in civil 
        disturbance or drug activity which had some foreign 
        aspects. Second, Operation Shamrock, which began as an 
        effort to acquire the telegrams of certain foreign 
        targets, expanded so that NSA obtained from at least 
        two cable companies essentially all cables to or from 
        the United States, including millions of the private 
        communications of Americans.\5\
---------------------------------------------------------------------------
    \5\ Idem

    In discussing the potential costs of abusive electronic 
---------------------------------------------------------------------------
surveillance, the report on P.L. 95-511 (FISA) noted in 1978:

        Also formidable--although incalculable--is the 
        `chilling effect' which warrantless electronic 
        surveillance may have on the constitutional rights of 
        those who were not targets of the surveillance, but who 
        perceived themselves . . . as potential targets. . . . 
        The exercise of political freedom depends in large 
        measure on citizens' understanding that they will be 
        able to be publicly active . . . without having to 
        sacrifice the expectation of privacy that they 
        rightfully hold.\6\
---------------------------------------------------------------------------
    \6\ Legislative History, P.L. 95-511, p. 3909-3910.

    In 1978, Congress enacted FISA to strengthen both national 
security and the Constitutional rights of Americans. The two 
pillars of FISA are: (a) the requirement that a Foreign 
Intelligence Surveillance Court (FISC)--composed of independent 
federal judges--carefully oversee and authorize surveillance; 
and (b) the obligation that the Executive Branch must inform 
Congress on surveillance programs and activities.
    FISA created procedural protections for United States 
persons while allowing less stringent standards for 
surveillance of foreign powers or agents of foreign powers. The 
drafters of the statute also imposed penalties on 
telecommunications companies that did not comply with the law's 
requirements. Since these companies are indispensable to the 
collection of foreign intelligence, imposing liability on them 
ensured that they would be meticulous in ensuring that the 
government was complying with the law in seeking surveillance 
assistance.
    FISA's statutory scheme also provided for flexible 
procedures for emergencies and wartime.
    For decades, FISA has served as an essential tool in our 
nation's intelligence collection efforts and was regarded as 
the exclusive means by which the government could conduct 
electronic surveillance for foreign intelligence purposes in 
the United States. As the Committee has learned in a variety of 
settings, information gained from FISA surveillance has kept 
the nation safe.

2. History of the ``President's Program''

    Soon after September 11, 2001, President Bush authorized 
the NSA to conduct a range of surveillance activities designed 
to protect the country from terrorism. Collectively, these 
activities were known inside the Administration as the 
``President's Program.'' On its face, the President's Program--
which directed electronic surveillance at individuals abroad 
but also American citizens inside the United States--violated 
FISA's unambiguous provisions requiring a court order.
    Information about this Program was closely held within the 
Administration. For example, even though the NSA was directed 
to carry out this surveillance, Counsel to the Vice President 
David Addington--who helped draft the authorizations--did not 
permit Agency lawyers to read the Justice Department's opinions 
describing the legal justifications for violating FISA. In 
addition, Counsel for Intelligence Policy and Review, James 
Baker, testified before the Committee on September 20, 2007, 
that he was not even informed of the President's Program until 
after it was underway.
    Certain members of Congress received periodic briefings on 
aspects of the President's Program, but the full Intelligence 
Committees in both chambers were not informed of these 
activities until the Spring of 2006. The Administration did not 
provide written authorizations and legal opinions to Members of 
Congress, and to this day those core documents have been 
withheld by the Administration.
    The enormous secrecy surrounding the President's Program 
had little to do with the operational sensitivity of the 
collection methods. It was widely-known that the NSA was 
surveilling terrorists. What was ``sensitive'' was that the 
surveillance was not lawful: it violated a statute passed by 
Congress and signed into law by the President.
    The Committee believes it is important to review, in depth, 
the full range of activities conducted under the President's 
Program. Committee Members and staff have received briefings 
from the Executive Branch on aspects of the Program. However, 
the Committee's oversight has been stymied by the refusal of 
the Administration to provide full documentation to the 
Committee.
    The Committee does wish to clarify one misconception. Our 
concern is not with the men and women of NSA. The Committee 
believes that the NSA is a vital national security asset, 
staffed with some of our nation's best minds who serve 
patriotically pursuant to a strict ethic of legal compliance. 
Our concern is with those senior officials in the 
Administration who authorized the Program, shielded it from 
judicial and congressional oversight, and who--to this day--
refuse to allow full transparency into its operations.
    In hindsight, violating FISA was unnecessary. Had the 
Agencies come to Congress and requested modifications to FISA, 
Congress likely would have granted the authority.
    The Committee notes that the Executive Branch came to 
Congress to request modifications to FISA numerous times. In 
the USA PATRIOT Act, Congress enhanced the ability of law 
enforcement officers to search electronic communications, 
including granting the authority to conduct roving wiretaps, 
extending the duration of FISA warrants, and expanding the 
scope of business records obtainable with a FISA Order. All 
told, the Patriot Act made some 20 changes to FISA, altering it 
fundamentally.
    Congress repeatedly amended FISA to provide the 
Administration with the statutory authorization it needed 
uncover terrorist plots. Following the modifications provided 
in the initial PATRIOT Act, the Administration requested 
changes to FISA in the Intelligence Authorization Act of FY 
2002, the Homeland Security Act of 2002, the Intelligence 
Reform and Terrorism Prevention Act in 2004, the USA PATRIOT 
Improvement and Reauthorizing Act of 2005, and the USA PATRIOT 
Act Additional Reauthorizing Amendments Act of 2006.

3. FISC Review

    In December 2006, the Administration decided to place all 
aspects of the President's Program under review by the FISC.
    On January 10, 2007, the FISC issued orders authorizing the 
government to target international communications of members of 
al Qaeda or associated terrorist organizations. Seven days 
later, on January 17, 2007, Attorney General Gonzales informed 
Congress, ``As a result of these orders, any electronic 
surveillance that was occurring as part of the Terrorist 
Surveillance Program will now be conducted subject to the 
approval of the [FISC].'' \7\ Thus, the Administration decided 
not to reauthorize the President's Program, but to instead work 
under FISA.
---------------------------------------------------------------------------
    \7\ Letter from Attorney General Alberto Gonzales to Senate 
Judiciary Committee, January 17, 2007.
---------------------------------------------------------------------------
    As Director of National Intelligence (``DNI'') Michael 
McConnell revealed to the El Paso Times,\8\ when the time came 
to renew the program in May 2007, a second FISA judge issued a 
ruling that increased the burden on the NSA to provide 
information to the Court about individual foreign targets. The 
details of these orders remain classified.
---------------------------------------------------------------------------
    \8\ El Paso Times, August 22, 2007.
---------------------------------------------------------------------------

4. An ``Intelligence Gap''

    In July 2007, the DNI informed the Committee that as a 
result of the FISC's May 2007 decision, the NSA was devoting 
precious resources providing information to the FISC about 
foreign targets. This, the DNI claimed, had caused a collection 
gap by reducing the number of foreign targets the NSA had the 
resources to surveil.
    On July 18, 2007, the Chairman of the Committee wrote the 
President and urged him to devote all necessary resources to 
closing this critical intelligence gap. In addition, Committee 
Members and staff met with senior Intelligence Community 
officials to determine how to close this gap.
    Throughout these discussions, the Committee was told of the 
excessive burden of devoting government resources to obtaining 
individual court orders for foreign targets when the collection 
occurs inside the United States with the assistance of U.S. 
communications companies.
    The Administration strenuously urged that Congress remove 
any requirement to involve the FISC in electronic surveillance 
of foreign targets, even when they may be communicating with 
Americans.
    The Committee rejected the Administration's request for 
three reasons. First, the collection occurred on U.S. soil, 
implicating the U.S. Constitution. Second, the purpose of the 
President's Program, as the President explained, was to collect 
communications where one end of the communication was in the 
United States, thus implicating the rights of Americans. Third, 
the collection involved well-known American communications 
companies, used by millions of Americans everyday. The 
Committee did not wish to authorize the government to access 
the companies' systems without any oversight.
    Others urged the Committee to retain FISA's rule that the 
government be required to obtain an individual court order, 
based upon probable cause that the target of surveillance was a 
foreign power or agent of a foreign power, for any 
communication ``to or from a person inside the United 
States''--even when the surveillance was directed at a person 
outside the United States.
    The Committee also rejected this approach because non-
United States Persons outside the United States do not require 
the Constitutional protection afforded to United States 
persons. Under well-established procedures, NSA is not required 
to obtain individual FISA orders against foreign targets when 
the collection occurs overseas. Therefore, the NSA should not 
be required to obtain individual FISA orders simply because the 
collection physically occurs inside the United States.
    In the summer of 2007, the policy question before Committee 
was this: What rule should apply when the government seeks to 
acquire communications of persons overseas, when the collection 
occurs inside the United States and when the communication may 
involve a person inside the United States?
    The Director of National Intelligence indicated that he had 
three priorities: (1) that individual ``probable cause'' 
determinations not be required for foreign targets; (2) that 
the Executive Branch be given authority to compel 
telecommunications companies to assist in surveillance of 
foreign targets; and (3) that individual ``probable cause'' 
orders continue to be required for U.S. Persons.
    The Congressional leadership negotiated with Director 
McConnell and drafted legislation, H.R. 3356, that achieved 
these three objectives.
    In the course of negotiations, Director McConnell made 
several other requests, including that authorization be 
expanded from terrorism-related intelligence to all foreign 
intelligence. In an effort to achieve a bipartisan agreement, 
the Congressional leadership agreed to this request as well.
    However, instead of agreeing to a bipartisan solution that 
carefully balanced the national security and Constitutional 
considerations, the Director of National Intelligence shifted 
his stance. On August 3, 2007, he released a statement that he 
``must have certainty'' to prevent ``attacks that are being 
planned today to inflict mass casualties on the United 
States''--suggesting that the Democratic legislation would lead 
to such an outcome. (He later noted that he had not even read 
the legislation.)
    H.R. 3356 received a majority of votes in the House, but it 
did not receive the required two-thirds vote to pass on the 
Suspension Calendar. On August 4, 2007, the House considered S. 
1927, the Protect America Act (``PAA''), a bill drafted by the 
Administration. PAA passed the House and was signed into law.
    The PAA authorized the Director of National Intelligence 
and the Attorney General to acquire foreign intelligence 
information ``concerning'' persons outside the United States 
for one year, as long as the acquisition was not electronic 
surveillance, involved the assistance of a telecommunications 
provider, and a significant purpose was to obtain foreign 
intelligence.
    The impact of using the word ``concerning'' was that the 
Executive Branch could direct warrantless surveillance at 
Americans, as long as the information sought ``concerned'' a 
person abroad. FISA experts testified before the Committee on 
September 18, 2007, that this breathtaking expansion of 
surveillance authority could be read to allow secret 
warrantless physical searches of Americans' homes, offices, 
computer records, and medical records. Administration officials 
have asserted that this was not their intent, while 
simultaneously insisting that the PAA's precise language must 
be reauthorized permanently.
    The PAA eviscerates the FISC's oversight role. Under that 
statute, after 120 days, the FISC reviews the procedures and 
guidelines developed by the Attorney General under a ``clearly 
erroneous'' standard. This standard required the court to give 
the Administration's decision complete deference, effectively 
converting the Court into a ``rubber stamp.''
    The PAA's prospective liability protection for 
telecommunications carriers was weaker than that in H.R. 3356 
because it did not require a Court order, but only an Attorney 
General certification to compel cooperation.
    The PAA authorities expire 180 days after enactment, 
requiring Congress to take further action if the authorities 
were to continue.

5. Post-PAA Enactment

    Following enactment of the PAA, the Committee began meeting 
with representatives of the NSA, FBI, DOJ, and DNI to oversee 
the implementation of the new authorities. The leadership of 
the House committed to working on longer-term authorities for 
warrantless electronic surveillance that were more protective 
of the rights of Americans while providing the intelligence 
community with the tools it needed to protect the nation. The 
leadership also committed to bringing such a proposal to the 
floor quickly.
    During Committee hearings, Members of the Committee sought 
to clarify the intent of ambiguous language in the PAA. The 
Committee also solicited the Administration's views on various 
legislative proposals.
    Administration officials clarified that they did not seek 
authorization for: (1) warrantless searches of Americans' homes 
inside the United States; (2) warrantless searches by the FBI 
or NSA of domestic mail; (3) collection of medical or business 
records; (4) bulk collection of ``call detail records''--also 
known as metadata--of every domestic phone call made by 
Americans. H.R. 3773, as reported by the Committee, does not 
authorize any of these activities.
    More shocking, a senior Executive Branch official 
acknowledged to the Committee during an open hearing that the 
PAA authorizes warrantless spying on American soldiers abroad 
who may be communicating with their families back home. The 
following exchange took place between Ms. Wilson of New Mexico 
and Kenneth Wainstein, Assistant Attorney General for National 
Security Division of the Department of Justice:

        Ms. Wilson: ``Thank you, Mr. Chairman. Mr. Wainstein, 
        would the Protect America Act affect the e-mail of a 
        soldier communicating with his family back home?''
        Mr. Wainstein: ``Under certain circumstances, it would, 
        yes. The Protect America Act allows us to target 
        surveillance on persons overseas.''

    The RESTORE Act repeals the authority of the government 
under the PAA to conduct warrantless spying on American 
soldiers.
    During testimony, Director McConnell indicated that he did 
not oppose raising the level of FISC review to a ``reasonable'' 
standard. He also did not oppose the Court reviewing 
minimization procedures. Further, he stated he did not oppose 
requiring an Inspector General to audit the program. These 
three features are incorporated into the RESTORE Act.

                      C. DISCUSSION OF LEGISLATION

    The legislation supplements FISA by authorizing additional 
foreign intelligence collection against targets located 
overseas when the communication passes through the United 
States. It further empowers the FISC to approve certain aspects 
of the additional foreign intelligence collection to ensure 
that the privacy rights of Americans are protected.

1. Additional intelligence gathering authorities

    The bill provides the Intelligence Community with the 
additional authority to engage in the collection of foreign 
intelligence information related to the national defense 
without obtaining individualized warrants for foreign targets, 
even when the collection occurs on a wire located in the United 
States.
    First, it clarifies that FISA orders are not required to 
target communications between two foreign nationals overseas, 
even if the communication passes on a wire through the United 
States. This language ensures that the government may intercept 
the communications of terrorists and other threats to national 
security located overseas without seeking approval from the 
FISC if the communication does not involve a United States 
Person.
    Second, the bill enhances FISA by allowing the Intelligence 
Community to target the communications of foreign nationals 
abroad without obtaining individualized warrants.

2. Protection of Constitutional rights for United States persons

    The bill also mandates a meaningful and substantial role 
for the Court. The bill requires the FISC to review targeting 
procedures to ensure that they are reasonably designed to 
target only non-United States persons outside the United 
States. The FISC must also review minimization procedures that 
the Intelligence Community will use in policing its collection 
to ensure that the procedures meet the requirements under FISA. 
The FISC will also review the Intelligence Community's 
procedures to ensure that, when the government seeks to conduct 
electronic surveillance of a United States Person in the United 
States, it obtains a traditional individualized warrant from 
the FISA Court.
    The bill requires that the FISC review and approve these 
procedures prior to collection. However, the bill includes a 
provision for emergency surveillance coverage under the new 
authority, which allows the Attorney General and the Director 
of National Intelligence, in emergencies, to begin surveillance 
and bring the procedures and guidelines to the FISA Court for 
review within 45 days.
    The bill also makes clear that the new authorities cannot 
be used to target known United States Persons. In doing so, the 
bill provides protection to United States Persons abroad 
without conferring any rights or privileges to persons within 
the United States who are neither United States Citizens nor 
lawfully admitted for permanent residence.

3. Liability protections for private sector

    The bill provides additional liability protections for 
private sector actors that assist the government in 
facilitating surveillance authorized by court order pursuant to 
these new authorities.

4. Oversight and auditing of authorities

    The bill includes substantial and meaningful congressional 
oversight and independent auditing of the activities undertaken 
by the Intelligence Community pursuant to the new authorities. 
It empowers the Department of Justice's Inspector General to 
ensure that Americans are not being targeted inappropriately by 
the Intelligence Community as a result of this additional 
authority, and it requires continuous and regular reporting to 
Congress and the FISC.
    It also requires the Intelligence Community to provide 
Congress with information concerning past surveillance 
activities that were undertaken by the President outside of 
FISA.

5. Sunset

    The bill sunsets on December 31, 2009, to allow Congress to 
review the Intelligence Community's use of the new authorities 
and the impact of those authorities on the Constitutional 
rights of Americans.

6. Streamlining provisions and additional resources

    The bill modernizes and streamlines certain procedures for 
obtaining individualized FISA warrants for targets within the 
United States and authorizes additional resources for carrying 
out the new authorities and additional tasks related to 
oversight. It increases the size of the FISC to fifteen judges, 
and calls for more personnel and additional training for the 
Intelligence Community and others involved in implementing the 
new authorities under the bill.

7. Exclusivity of FISA

    The bill reiterates that FISA is the exclusive means to 
conduct electronic surveillance for the purpose of foreign 
intelligence collection and provides stricter penalties for 
those who attempt to circumvent FISA.

8. Responding to the Minority's views

    Instead of supporting a bill that will enhance our national 
security and restore Constitutional rights, the Minority has 
chosen to defend limitless spying on Americans, including our 
own soldiers. Defending the Administration's unchecked spying 
policies might play well with some, but we doubt history will 
judge it kindly.
    The Minority lodges ten objections to H.R. 3773, each one 
more alarmist than the previous.
    First, the Ranking Minority Member complains that the 
legislation fails to provide liability protection for 
telecommunications carriers allegedly involved in the 
President's Program. On May 31, 2007, the Chairman and the 
Ranking Minority Member signed a letter to the Director of 
National Intelligence and the Attorney General requesting 
documents about the President's Program. These documents have 
not been provided. It is difficult for Congress to consider the 
issue of immunity until the Ranking Minority Member's own 
requests have been answered.
    Second, they oppose the provision which states that 
foreign-to-foreign communications do not require a Court order. 
This is curious. We included this provision in H.R. 3773 
because the Administration and Minority had claimed for months 
that this was the central defect with FISA.
    Third, they are concerned that the scope of H.R. 3773 is 
too narrow. H.R. 3773 applies to intelligence collection 
``necessary to the national defense or the security of the 
United States.'' We understand that the PAA allows for 
unrestricted surveillance on academic institutions, think 
tanks, journalists, and U.S. service members abroad. We do not 
agree with this approach.
    Fourth, they protest the creation of a record-keeping 
system at NSA designed to safeguard the communications of 
United States Persons. The fact that the Minority opposes 
accountability regarding the monitoring of Americans' 
communications raises the suspicion that the Minority is 
comfortable with the unrestricted dissemination of Americans' 
phone calls and emails throughout the federal government.
    Fifth, the Minority complains about the lack of prospective 
liability protection for telecommunications companies in the 
RESTORE Act's emergency provision. We look forward to working 
with the Minority to address this issue.
    Sixth, the Minority opposes a two-year sunset on H.R. 3773. 
However, we believe that because the RESTORE Act provides such 
powerful tools to the government, a sunset clause is an 
appropriate mechanism to require the Congress to revisit these 
tools in two years.
    The seventh objection is the most troubling. They complain 
about ``expand[ing] the role of the FISC into foreign 
intelligence collection overseas.'' The Court will not be 
involved in intelligence collection. The Court will be involved 
in approving the procedures drafted by the DNI to protect 
Americans. In fact, the FISC should be involved in oversight of 
foreign intelligence. That is why it is called a ``Foreign 
Intelligence Surveillance Court.''
    They suggest that the legislation would require a 
``warrant'' for listening to calls of terrorists abroad. This 
is flatly untrue. No individual warrant or court order is 
required for foreign targets under the RESTORE Act. The Court's 
role is to approve procedures to ensure that Americans are not 
targeted and that their Constitutional rights remain as they 
have for more than 200 years.
    Eighth, the Minority opposes using the Department of 
Justice Inspector General for the purpose of auditing the 
surveillance. They decry imposing ``non-Intelligence Community 
personnel into the work of the Intelligence Community.'' Under 
that rule, the House Permanent Select Committee on Intelligence 
would not be permitted to do its oversight work. Therein lies 
the difference; we support strong oversight.
    Ninth, they oppose a requirement that the President provide 
information to Congress about the President's Program. The 
Committee's oversight of the program has been stymied by the 
White House's refusal to provide the Ranking Minority Member 
with the relevant documentation that he and the Chairman 
requested on May 31. We cannot understand why the Minority 
opposes the Ranking Minority Member's request.
    Tenth, they oppose the provision that reiterates FISA's 
exclusivity on the grounds that it could constitute an 
``unconstitutional infringement of the President's 
constitutional authority.'' The statutory language and 
legislative history of FISA makes clear that it was designed to 
limit the President's ability to conduct warrantless 
surveillance of Americans. FISA is not unconstitutional. The 
Minority's argument would apply with equal force to the Fourth 
Amendment itself--an argument too absurd to consider.
    In addition to these complaints, the Committee has heard 
two additional complaints, which, although highly irregular, 
merit a reply.
    Some have suggested that the bill as reported confers 
rights on terrorists who may have come into the United States 
under a visa and overstayed their visa. This is absolutely 
false. The RESTORE Act does nothing to alter the definition of 
U.S. Person in FISA, which includes U.S. citizens or persons 
lawfully admitted for permanent residence. The bill confers no 
right or privilege on temporary visa holders or illegal aliens.
    Additionally, as part of a campaign to ``put a human face'' 
on the FISA discussion, some Republican officials have begun to 
suggest that FISA caused a delay in intercepting communications 
related to the missing soldiers from the 10th Mountain 
Division. This is as cynical as it is misleading. The RESTORE 
Act removes any requirement for individual warrants for foreign 
targets. But more fundamentally, as the DNI was forced to 
publicly acknowledge, the 9-hour delay in that case was caused 
by the Bush Administration's own bureaucracy. Although the 
Attorney General could have authorized surveillance in minutes, 
he was unreachable for nearly two hours because he was 
traveling in Texas. FISA does not preclude leadership and 
common sense in a time of crisis.

                    Committee Hearings and Briefings

    To date in the first session of the 110th Congress, the 
Committee has held seven hearings with respect to improvement 
of the FISA, two of which were held in open session and five of 
which were held in closed session.
    The Committee held four hearings prior to passage of the 
PAA on August 4, 2007. On June 14, 2007, the Committee held a 
closed hearing to receive testimony from former Deputy Attorney 
General James B. Comey. On June 21, 2007, the Committee met in 
closed session to receive testimony from former Attorney 
General John Ashcroft. In a closed hearing on July 11, 2007, 
the Committee received testimony from General Michael Hayden, 
Director of the Central Intelligence Agency and former Director 
of the National Security Agency. On July 19, 2007, the 
Committee held a closed hearing to receive testimony from then-
Attorney General Alberto Gonzales.
    Three additional hearings were held after passage of the 
PAA. On September 6, 2007, the Committee met in closed session 
and received testimony from Mr. Robert S. Mueller, III, 
Director of the Federal Bureau of Investigation; Assistant 
Attorney General Kenneth Wainstein of the Department of Justice 
National Security Division; and Lieutenant General Keith 
Alexander, Director of the National Security Agency. On 
September 18, 2007, the Committee held an open hearing to 
receive testimony from Mr. James Baker, former Counsel for the 
Department of Justice Office of Intelligence Policy and Review 
and lecturer at Harvard Law School; Mr. Jim Dempsey, Policy 
Director for the Center for Democracy and Technology; Ms. Lisa 
Graves, Deputy Director of the Center for National Security 
Studies; and Mr. David Rivkin, a partner at Baker Hostetler. On 
September 20, 2007, the Committee again held an open hearing 
and received testimony from Vice Admiral J. Michael McConnell, 
U.S. Navy (Ret.), Director of National Intelligence; and 
Assistant Attorney General Wainstein from the Department of 
Justice National Security Division.
    The Committee also received five briefings from the 
intelligence community on topics relating to FISA. On January 
24, 2007, Assistant Attorney General Steven Bradbury, Assistant 
Attorney General Kenneth Wainstein, and National Security 
Agency General Counsel Vito Potenza briefed the Committee in a 
closed session. On July 24, 2007, the Committee was briefed by 
General Michael Hayden, Director of the Central Intelligence 
Agency and former Director of the National Security Agency. On 
July 31, 2007, the Committee, in a joint closed session with 
the House Committee on the Judiciary, was briefed by Vice 
Admiral J. Michael McConnell, U.S. Navy (Ret.), Director of 
National Intelligence. Director McConnell returned on August 2, 
2007, to brief the entire House in a closed session, which was 
co-hosted by the Speaker of the House and the Committee. On 
September 11, 2007, Director McConnell again briefed the 
Committee in a closed session.

              Committee Consideration and Roll Call Votes

    On October 10, 2007, the Committee met in open and closed 
session and ordered the bill H.R. 3773 favorably reported, as 
amended.

                              OPEN SESSION

    In open session, the Committee considered the text of the 
bill H.R. 3773.
    The Committee considered the following amendments:
    Mr. Boswell offered an amendment to provide retroactive 
immunity to communications service providers for any provision 
of information, assistance, or access to facilities in 
connection with an authorized communications intelligence 
program during the period beginning September 11, 2001, and 
ending on the date of the enactment of H.R. 3773. Mr. Boswell 
later withdrew his amendment.
    Mr. Issa then introduced an amendment to provide 
retroactive immunity to communications service providers 
providing information, assistance, or access to facilities in 
connection with an authorized communications intelligence 
program during the period beginning September 11, 2001, and 
ending on the date of the enactment.

                             CLOSED SESSION

    Mr. Hoekstra moved to close the meeting because national 
security would be endangered if the matters to be considered 
were disclosed. Mr. Gallegly seconded the motion, and the 
Chairman called for a record vote. The motion was agreed to by 
a record vote of 19 ayes to 1 no:
    Voting aye: Mr. Reyes, Mr. Boswell, Mr. Cramer, Ms. Eshoo, 
Mr. Holt, Mr. Ruppersberger, Mr. Thompson, Ms. Schakowsky, Mr. 
Langevin, Mr. Murphy, Mr. Hoekstra, Mr. Everett, Mr. Gallegly, 
Ms. Wilson, Mr. Thornberry, Mr. McHugh, Mr. Tiahrt, Mr. Rogers, 
Mr. Issa.
    Voting no: Mr. Hastings.

                              OPEN SESSION

    After debate, the Committee returned to open session to 
complete consideration of the Issa Amendment.
    It was not agreed to by a record vote of 9 ayes and 10 
noes:
    Voting aye: Mr. Boswell, Mr. Hoekstra, Mr. Everett, Mr. 
Gallegly, Mr. Thornberry, Mr. McHugh, Mr. Tiahrt, Mr. Rogers, 
Mr. Issa.
    Voting no: Mr. Reyes, Mr. Hastings, Mr. Cramer, Ms. Eshoo, 
Mr. Holt, Mr. Ruppersberger, Mr. Thompson, Ms. Schakowsky, Mr. 
Langevin, Mr. Murphy.
    Ms. Schakowsky offered an amendment to require that the 
Administration apply for an individual warrant when a 
``significant purpose'' of the collection is to acquire the 
communications of a specific United States Person reasonably 
believed to be located in the United States.
    Mr. Rogers then offered an amendment to modify the 
Schakowsky Amendment by striking the word ``significant'' and 
inserting the word ``sole.'' The Rogers Secondary Amendment was 
not agreed to by a record vote of 8 ayes and 11 noes:
    Voting aye: Mr. Hoekstra, Mr. Everett, Mr. Gallegly, Mr. 
Thornberry, Mr. McHugh, Mr. Tiahrt, Mr. Rogers, Mr. Issa.
    Voting no: Mr. Reyes, Mr. Hastings, Mr. Boswell, Mr. 
Cramer, Ms. Eshoo, Mr. Holt, Mr. Ruppersberger, Mr. Thompson, 
Ms. Schakowsky, Mr. Langevin, Mr. Murphy.
    Mr. Issa then offered an amendment to modify the Schakowsky 
Amendment by striking the word ``significant'' and inserting 
the word ``primary.'' The Issa Secondary Amendment was not 
agreed to by a record vote of 8 ayes and 11 noes:
    Voting aye: Mr. Hoekstra, Mr. Everett, Mr. Gallegly, Mr. 
Thornberry, Mr. McHugh, Mr. Tiahrt, Mr. Rogers, Mr. Issa.
    Voting no: Mr. Reyes, Mr. Hastings, Mr. Boswell, Mr. 
Cramer, Ms. Eshoo, Mr. Holt, Mr. Ruppersberger, Mr. Thompson, 
Ms. Schakowsky, Mr. Langevin, Mr. Murphy.
    The Committee then resumed debate on the Schakowsky 
Amendment. The Schakowsky Amendment was agreed to by a record 
vote of 11 ayes and 8 noes:
    Voting aye: Mr. Reyes, Mr. Hastings, Mr. Boswell, Mr. 
Cramer, Ms. Eshoo, Mr. Holt, Mr. Ruppersberger, Mr. Thompson, 
Ms. Schakowsky, Mr. Langevin, Mr. Murphy.
    Voting no: Mr. Hoekstra, Mr. Everett, Mr. Gallegly, Mr. 
Thornberry, Mr. McHugh, Mr. Tiahrt, Mr. Rogers, Mr. Issa.
    The Committee then recessed for House floor votes and 
reconvened for business an hour later.
    When the Committee reconvened, Mr. Holt offered three 
amendments en bloc under a unanimous consent agreement. The 
Holt Amendment en bloc provides additional resources for the 
Foreign Intelligence Surveillance Court, establishes a document 
management system to streamline the system for handling FISA 
applications, requires FISA training for intelligence 
personnel, and clarifies FISA's wartime authority. The Holt 
Amendment en bloc also reiterates that FISA is the exclusive 
means of conducting electronic surveillance for foreign 
intelligence purposes and requires the Administration to fully 
inform Congress of the Terrorist Surveillance Program and any 
other surveillance program that does not comply with FISA.
    The Committee adopted the Holt Amendment en bloc by a 
record vote of 12 ayes and 7 noes:
    Voting aye: Mr. Reyes, Mr. Hastings, Mr. Boswell, Mr. 
Cramer, Ms. Eshoo, Mr. Holt, Mr. Ruppersberger, Mr. Tierney, 
Mr. Thompson, Ms. Schakowsky, Mr. Langevin, Mr. Murphy.
    Voting no: Mr. Hoekstra, Mr. Everett, Mr. Gallegly, Ms. 
Wilson, Mr. Thornberry, Mr. Tiahrt, Mr. Issa.
    Following consideration of the Holt Amendment, Mr. 
Langevin, along with Messrs. Tierney and Holt, offered an 
amendment to require that the Foreign Intelligence Surveillance 
Court conduct quarterly assessments of the targeting and 
minimization procedures and guidelines. The Langevin Amendment 
was agreed to on a record vote of 12 ayes and 7 noes:
    Voting aye: Mr. Reyes, Mr. Hastings, Mr. Boswell, Mr. 
Cramer, Ms. Eshoo, Mr. Holt, Mr. Ruppersberger, Mr. Tierney, 
Mr. Thompson, Ms. Schakowsky, Mr. Langevin, Mr. Murphy.
    Voting no: Mr. Hoekstra, Mr. Everett, Mr. Gallegly, Ms. 
Wilson, Mr. Thornberry, Mr. Tiahrt, Mr. Issa.
    Mr. Holt offered an amendment to strike certain sections of 
the RESTORE Act. Following debate, Mr. Holt withdrew his 
amendment.
    Mr. Hoekstra then offered an amendment in the nature of a 
substitute to repeal the sunset provisions of the Protect 
America Act and provide blanket retroactive immunity against 
prosecution of any corporation or person providing records or 
information to the Attorney General during the period beginning 
September 11, 2001, and ending with the date of enactment of 
the bill. The Hoekstra Amendment was not agreed to by a record 
vote of 7 ayes and 12 noes:
    Voting aye: Mr. Hoekstra, Mr. Everett, Mr. Gallegly, Ms. 
Wilson, Mr. Thornberry, Mr. Tiahrt, Mr. Issa.
    Voting no: Mr. Reyes, Mr. Hastings, Mr. Boswell, Mr. 
Cramer, Ms. Eshoo, Mr. Holt, Mr. Ruppersberger, Mr. Tierney, 
Mr. Thompson, Ms. Schakowsky, Mr. Langevin, Mr. Murphy.
    The Committee then voted to report favorably the bill by a 
record vote of 12 ayes and 7 noes:
    Voting aye: Mr. Reyes, Mr. Hastings, Mr. Boswell, Mr. 
Cramer, Ms. Eshoo, Mr. Holt, Mr. Ruppersberger, Mr. Tierney, 
Mr. Thompson, Ms. Schakowsky, Mr. Langevin, Mr. Murphy.
    Voting no: Mr. Hoekstra, Mr. Everett, Mr. Gallegly, Ms. 
Wilson, Mr. Thornberry, Mr. Tiahrt, Mr. Issa.

                      Section-by-Section Analysis


Section 1. Short Title and Table of Contents

Section 2. Clarification of Electronic Surveillance of Non-United 
        States Persons Outside the United States

    105A(a) Clarifies that a court order is not required to 
collect the contents of communications between non-United 
States Persons located outside the United States (even when the 
surveillance device is located in the United States). Maintains 
the FISA section 101(f) definition of ``electronic 
surveillance.''
    105A(b) Provides a procedure, subject to court review, for 
conducting electronic surveillance (as defined in section 
101(f) of FISA) targeting persons reasonably believed to be 
outside the United States and not United States Persons when 
the purpose is to collect foreign intelligence information. 
(Note: this provision defines ``foreign intelligence 
information'' in accordance with the categories established in 
paragraphs (1) and (2)(A) of section 101(e) of FISA.)

Section 3. Procedure for Authorizing Acquisitions of Communications of 
        Non-United States Persons Located Outside the United States

    105B(a) Allows the Director of National Intelligence (DNI) 
and the Attorney General (AG) to jointly apply for a court 
order authorizing the collection of communications of persons 
reasonably believed to be outside the United States and not 
United States Persons.
    105B(b) Requires that the contents of an application under 
105B(a) include:
     A certification from the DNI and the AG that:
    (A) The targets of the acquisition are reasonably believed 
to be outside the United States;
    (B) The targets of the acquisition are reasonably believed 
to be persons who are not United States Persons;
    (C) The acquisition involves obtaining the assistance of 
communications service providers; and
    (D) A significant purpose of the acquisition is to obtain 
foreign intelligence information. (Note: this provision defines 
``foreign intelligence information'' in accordance with the 
categories established in paragraphs (1) and (2)(A) of section 
101(e) of FISA.)
     A description of:
    (A) The procedures that will be used to determine that 
there is a reasonable belief that the targets of the 
acquisition are located outside the United States and are 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 to be used that meet the 
requirements of section 101(h) of FISA; and
    (D) The guidelines that will be used to ensure that the 
government obtains an individualized warrant when a significant 
purpose of the collection is to acquire the communications of a 
specific United States Person reasonably believed to be inside 
the United States.
    105B(c) States that the application under 105B(a) is not 
required to identify the specific facilities, places, or 
premises where the acquisition will be directed.
    105B(d) Requires a judge from the FISC to review an 
application under 105B(a) within 15 days of receiving such 
application and mandates approval of that application if the 
judge finds that:
     There are procedures reasonably designed to target 
only non-United States Persons located outside the United 
States;
     The proposed minimization procedures meet the 
definition of minimization procedures in section 101(h) of 
FISA; and
     There are guidelines reasonably designed to ensure 
that the government obtains an individualized warrant when a 
significant purpose of the collection is to acquire the 
communications of a specific United States Person reasonably 
believed to be inside the United States.
    105B(e) Requires that a judge approving an application 
under 105B(d) issue an order:
     Authorizing the acquisition as requested or as 
modified by the judge;
     Compelling the assistance of a communications 
service provider who has authorized access to the information 
or facilities sought;
     Compelling such communications service provider to 
maintain security over any records concerning the acquisition;
     Directing the government to compensate the 
communications service provider and to provide a portion of the 
court order directing compliance to the communications service 
provider; and
     Directing the agency submitting the application to 
follow the procedures and guidelines outlined in 105B(b)(2).
    This section also:
     Empowers the AG to invoke the aid of the FISC to 
compel the communications service provider to comply with the 
order;
     Establishes that no cause of action shall lie 
against any communications service provider for complying with 
an order issued under this section;
     Requires the DNI and the FISC to retain such 
orders for at least 10 years; and
     Requires the judge to assess compliance on a 
quarterly basis with the procedures and guidelines referred to 
in 105B(e)(1)(E).

Section 4. Emergency Authorization of Acquisitions of Communications of 
        Non-United States Persons Located Outside the United States

    105C(a) Requires that the DNI and the AG submit an 
application consistent with 105B within 7 days after 
authorizing emergency acquisition of foreign intelligence 
information.
    105C(b) Allows the DNI and the AG to authorize emergency 
acquisition of foreign intelligence information for a period of 
no more than 45 days if:
     The DNI and the AG determine that an emergency 
situation exists;
     The targets of the acquisition are reasonably 
believed to be outside the United States;
     There are procedures in place reasonably designed 
to target only people outside the United States;
     The targets of the acquisition are not reasonably 
believed to be United States Persons;
     The acquisition involves obtaining the assistance 
of communications service providers;
     A significant purpose of the acquisition is to 
obtain foreign intelligence information (Note: this provision 
defines ``foreign intelligence information'' in accordance with 
the categories established in paragraphs (1) and (2)(A) of 
section 101(e) of FISA);
     Minimization procedures to be used meet the 
definition of minimization procedures under section 101(h) of 
FISA; and
     There are guidelines reasonably designed to ensure 
that the government obtains an individualized warrant when a 
significant purpose of the collection is to acquire the 
communications of a specific United States person reasonably 
believed to be located inside the United States.
    This section also requires that the DNI and the AG inform a 
FISC judge of any emergency authorization to acquire foreign 
intelligence information under this section at the time such 
authorization is issued.
    105C(c) Provides that the AG may direct a communications 
service provider to:
     Provide assistance in conducting the acquisition; 
and
     Maintain security over any records concerning the 
acquisition.

Section 5. Oversight of Acquisitions of Communications of Non-United 
        States Persons Located Outside the United States

    105D(a) Requires that the DNI and the AG submit each 
application submitted under 105B(a) (including the 
certification, procedures and guidelines) and any applicable 
order issued under 105B(e) to the appropriate committees of 
Congress within seven days after filing such application with 
the FISC.
    105D(b) Requires the Inspector General of the Justice 
Department to conduct audits every 120 days into the 
implementation of and compliance with the guidelines referred 
to in 105B(e)(1)(E) and requires that the results of such 
audits be reported to the appropriate committees of Congress, 
and to the DNI, the AG, and the FISC.
    This audit must include (for each order):
     The number of targets of acquisition determined to 
be located in the United States;
     The number of persons located in the United States 
whose communications have been acquired under such order;
     The number and nature of reports disseminated that 
contain information on a United States Person that was 
collected under such order; and
     The number of applications submitted for approval 
of electronic surveillance under section 104 of FISA whose 
communications were acquired under such order.
    This section also requires that, no later than 30 days 
after the completion of such audit, the AG submit a report to 
the appropriate committees of Congress.
    105D(c) Requires the DNI and the AG to submit to the 
appropriate committees of Congress and the FISC 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 105B(e), or
     By a person directed to provide information, 
facilities, or technical assistance pursuant to an order issued 
under 105B.
    This report must be submitted no later than 60 days after 
the enactment of the Act and every 120 days thereafter.
    105D(d) Requires the DNI and the AG to annually a report to 
Congress reporting the number of emergency authorizations 
issued under 105C and a description of any incidents of non-
compliance with an emergency authorization under 105C.
    105D(e) Defines ``appropriate committees of Congress'' to 
mean the Intelligence and Judiciary Committees of the House and 
Senate:

Section 6. Foreign Intelligence Surveillance Court En Banc

    Authorizes the FISC, at its discretion, to sit en banc.

Section 7. Foreign Intelligence Surveillance Court Matters

    (a) Provides authority to increase the number of judges on 
the FISC from 11 to 15 and expand the number of judicial 
circuits from which those judges can be designated.
    (b) Requires FISC judges to rule on emergency applications 
submitted under sections 105(f), 304(e) or 403 of FISA.

Section 8. Reiteration of Chapters 119 and 121 of Title 18, United 
        States Code and FISA as Exclusive Means by which Domestic 
        Electronic Surveillance May Be Conducted

    (a) Expands the scope of FISA's exclusivity to include 
accessing of stored communications and the use of pen registers 
and trap and trace devices.
    (b) Modifies FISA's penalty provisions to make explicit 
that any authorization for electronic surveillance must come 
from specific, enumerated statutes.
    (c) Modifies the criminal statute governing electronic 
surveillance to require a written certification stating that 
specific, enumerated statutory requirements have been met in 
order to authorize a communications provider to provide 
assistance in conducting electronic surveillance.

Section 9. Enhancement of Electronic Surveillance Authority in Wartime 
        and Other Collection

    Amends the wartime provisions of FISA to authorize 
electronic surveillance without a warrant where (1) Congress 
issues a declaration of war, (2) Congress issues an 
authorization for the use of military force that explicitly 
authorizes electronic surveillance, or (3) Congress is unable 
to convene due to attack upon the United States.

Section 10. Audit of Warrantless Surveillance Programs

    (a) Requires the Inspector General of the Justice 
Department, no later than 180 days after enactment of this Act, 
to conduct a comprehensive audit of all programs involving the 
acquisition of communications conducted without a court order 
since September 11, 2001, including the President's Program.
    (b) Requires the Inspector General to submit to the 
appropriate committees of Congress a report containing the 
results of the audit, no later than 30 days after its 
completion--along with all documents acquired in conducting the 
audit. The report must be submitted in unclassified form but 
may include a classified annex.
    (c) Requires the DNI to ensure that the process for 
granting necessary clearances for the Inspector General and 
appropriate staff is conducted as expeditiously as possible.

Section 11. Record-Keeping System on Interception of Communications 
        Without Warrant of United States Persons

    (a) Requires the DNI and the AG to jointly develop and 
maintain a system to record the instances where the identity of 
a United States Person was disclosed to other departments or 
agencies by an element of the intelligence community that 
collected the communications. The record-keeping system must 
also keep track of the persons to whom such identity was 
disclosed.
    (b) Requires the DNI and the AG to report annually on the 
disclosures maintained in this record-keeping system.

Section 12. Authorization for Increased Resources Relating to Foreign 
        Intelligence Surveillance

    Authorizes appropriations for the Justice Department and 
the National Security Agency to meet resource demands 
associated with submitting applications to the FISC and 
fulfilling the audit, reporting, and record-keeping 
requirements in the Act.

Section 13. Additional Personnel for Preparation and Consideration of 
        Applications for Orders Approving Electronic Surveillance and 
        Physical Search

    (a) Authorizes the Department of Justice to hire and assign 
additional personnel necessary for the prompt preparation, 
modification and review of FISA applications.
    (b) Authorizes the Director of National Intelligence to 
hire and assign additional personnel necessary for the prompt 
preparation, modification and review of FISA applications.
    (c) Authorizes the Foreign Intelligence Surveillance Court 
to hire additional personnel necessary for the prompt 
preparation, modification and review of FISA applications.
    (d) Clarifies that the personnel authorized under this 
section are in addition to any other personnel authorized by 
law.

Section 14. Document Management System for Applications for Orders 
        Approving Electronic Surveillance

    (a) Requires the AG, in consultation with the DNI, to 
develop and implement a classified document management system 
for processing FISA applications.
    (b) Requires that the system in subsection (a) facilitate 
prompt submission of FISA applications and rulings and provide 
for secure electronic storage and retrieval of all such 
applications.

Section 15. Training of Intelligence Community Personnel in Foreign 
        Intelligence Collection Matters

    Requires the DNI, in consultation with the AG, to establish 
procedures for conducting and seeking approval for (1) 
electronic surveillance, (2) physical search, (3) pen 
registers, and (4) trap and trace devices on an emergency basis 
and to prescribe related training on FISA and other legal 
matters for applicable personnel.

Section 16. Information for Congress on the Terrorist Surveillance 
        Program and Similar Programs

    Requires the President to fully inform each member of the 
House Permanent Select Committee on Intelligence and the Senate 
Select Committee on Intelligence on the President's Program and 
any other electronic surveillance program of United States 
Persons in the United States in existence from September 11, 
2001 until the effective date of this Act that did not comply 
with FISA.

Section 17. Technical and Conforming Amendments

    (a) Amends the table of contents in FISA to remove section 
titles from the Protect America Act and to include new titles 
for sections 105A-D.
    (b) Revises a reference in the FISA provisions relating to 
the FISC that had been added under the Protect America Act to 
provide the FISC jurisdiction to review applications submitted 
under 105B.
    (c) Repeals the reporting requirements and transition 
procedures established under the Protect America Act.

Section 18. Sunset; Transition Procedures

    (a)(1) Provides that, effective on December 31, 2009, 
sections 105A-D of FISA are repealed (along with their 
respective titles in the table of contents) and any amendments 
to section 103(e) and the table of contents of FISA prior to 
August 4, 2007 are repealed.
    (a)(2) Provides that any authorization issued under 105B in 
effect on December 31, 2009 shall continue in effect until the 
date of expiration of that order.
    (b)(1) Provides that any authorization issued under 105B 
that was in effect prior to the enactment of this act shall 
remain in effect until its expiration or until 180 days after 
the date of enactment (whichever is earlier).
    (b)(2) Requires the DNI and the AG to issue a report on 
acquisitions conducted under the Protect America Act (to 
include the same information required in the audit of the 
RESTORE Act under 105D(b)(1)).

                 Oversight Findings and Recommendations

    With respect to clause 3(c)(1) of rule XIII of the Rules of 
the House of Representatives, the Committee held two open 
hearings and five closed hearings, receiving testimony from 
outside experts, interested citizens, and Members of Congress. 
The Committee also received five briefings from senior 
officials of the Intelligence Community. The Committee reports 
that the findings and recommendations of the Committee are 
reflected in the bill, as reported by the Committee.

                General Performance Goals and Objectives

    In accordance with Clause (3)(c) of House rule XIII, the 
Committee's performance goals and objectives are reflected in 
the descriptive portions of this report.

                   Constitutional Authority Statement

    The intelligence and intelligence-related activities of the 
United States government are carried out to support the 
national security interests of the United States.
    Article 1, section 8 of the Constitution of the United 
States provides, in pertinent part, that `Congress shall have 
power * * * to pay the debts and provide for the common defense 
and general welfare of the United States; * * * '; and `to make 
all laws which shall be necessary and proper for carrying into 
execution * * * all other powers vested by this Constitution in 
the Government of the United States, or in any Department or 
Officer thereof.'

                       Unfunded Mandate Statement

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandates Reform Act, P.L. 104-4) requires a statement of 
whether the provisions of the reported bill include unfunded 
mandates. In compliance with this requirement, the Committee 
has received a letter from the Congressional Budget Office 
included herein.

                Applicability to the Legislative Branch

    The Committee finds that the legislation does not address 
the terms of conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act.

                           Earmarks Statement

    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.

     Budget Authority and Congressional Budget Office Cost Estimate

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, October 12, 2007.
Hon. Silvestre Reyes,
Chairman, Permanent Select Committee on Intelligence,
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,
                                                   Peter R. Orszag.
    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 would require 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 10 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 11 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.
     Sections 12 and 14 would authorize additional 
personnel for DOJ, the Office of the Director of National 
Intelligence, the FISC, and the National Security Agency (NSA) 
to process and review applications for warrants under FISA. 
Section 12 would also authorize additional funding for 
information technology for DOJ and NSA to process applications 
for FISA warrants.
     Section 13 would require the Attorney General to 
develop a secure, classified document management system that 
would be used to prepare, modify, and review 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 Committee on the Judiciary on October 10, 2007. 
The language of the two versions of the bill is similar, though 
this version of the bill contains some authorizations not 
included in the version approved by the Judiciary Committee.
    This version of the bill 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, this version of H.R. 3773 contains 
authorizations for additional personnel for the Office of the 
Director of National Intelligence and the Foreign Intelligence 
Surveillance Court that are not in the version approved by the 
Judiciary Committee. These additional authorizations could 
result in more costs than would result from the Judiciary 
Committee's version of H.R. 3773.
    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.

         Changes in Existing Law Made 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, 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 change is 
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 persons 
          located outside of the United States.

           *       *       *       *       *       *       *


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

           *       *       *       *       *       *       *


      Sec. 103. (a)(1) The Chief Justice of the United States 
shall publicly designate [11] 15 district court judges from at 
least seven of the United States judicial circuits of whom no 
fewer than 3 shall reside within 20 miles of the District of 
Columbia who shall constitute a court which shall have 
jurisdiction to hear applications for and grant orders 
approving electronic surveillance anywhere within the United 
States under the procedures set forth in this Act, except that 
no judge designated under this subsection shall hear the same 
application for electronic surveillance under this Act which 
has been denied previously by another judge designated under 
this subsection.
  (2) A judge of the court shall make a determination to 
approve, deny, or modify an application submitted pursuant to 
section 105(f), section 304(e), or section 403 not later than 
24 hours after the receipt of such application by the court.
  (3) If any judge so designated denies an application for an 
order authorizing electronic surveillance under this Act, such 
judge shall provide immediately for the record a written 
statement of each reason for his decision and, on motion of the 
United States, the record shall be transmitted, under seal, to 
the court of review established in subsection (b).

           *       *       *       *       *       *       *

  (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 
                United States 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 United States 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 court established under section 
        103(a) shall, not less frequently than once each 
        quarter, 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 
                United States 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 copy of the 
        application, including the certification made under 
        section 105B(b)(1); 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 18(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).]

           *       *       *       *       *       *       *


                               PENALTIES

    Sec. 109. (a) Offense.--A person is guilty of an offense if 
he intentionally--
          (1) engages in electronic surveillance under color of 
        law except as [authorized by statute] authorized by 
        title I or IV of the Foreign Intelligence Surveillance 
        Act (50 U.S.C. 1801-1811 and 1841-1846), or chapter 
        119, 121, or 206 of title 18, United States Code; or
          (2) disclose or uses information obtained under color 
        of law by electronic surveillance, knowing or having 
        reason to known that the information was obtained 
        through electronic surveillance not [authorized by 
        statute] authorized by title I or IV of the Foreign 
        Intelligence Surveillance Act (50 U.S.C. 1801-1811 and 
        1841-1846), or chapter 119, 121, or 206 of title 18, 
        United States Code.

           *       *       *       *       *       *       *


                    AUTHORIZATION DURING TIME OF WAR

    Sec. 111. Notwithstanding any other law, the President, 
through the Attorney General, may authorize electronic 
surveillance without a court order under this title to acquire 
foreign intelligence information for a period not to exceed 
fifteen calendar days following a declaration of war by the 
[Congress] Congress or an authorization for the use of military 
force described in section 2(c)(2) of the War Powers Resolution 
(50 U.S.C. 1541(c)(2)) if such authorization contains a 
specific authorization for foreign intelligence collection 
under this section, or if the Congress is unable to convene 
because of an attack upon the United States.

           *       *       *       *       *       *       *


   TITLE III--PHYSICAL SEARCHES WITHIN THE UNITED STATES FOR FOREIGN 
INTELLIGENCE PURPOSES

           *       *       *       *       *       *       *


                               PENALTIES

  Sec. 307. (a) A person is guilty of an offense if he 
intentionally--
          (1) under color of law for the purpose of obtaining 
        foreign intelligence information, executes a physical 
        search within the United States except [as authorized 
        by statute] as authorized by title III of the Foreign 
        Intelligence Surveillance Act (50 U.S.C. 1821-1829) or 
        Rule 41 of the Federal Rules of Criminal Procedure or 
        any other warrant issued by a court of competent 
        jurisdiction; or

           *       *       *       *       *       *       *


                    AUTHORIZATION DURING TIME OF WAR

  Sec. 309. Notwithstanding any other provision of law, the 
President, through the Attorney General, may authorize physical 
searches without a court order under this title to acquire 
foreign intelligence information for a period not to exceed 15 
calendar days following a declaration of war by the [Congress] 
Congress or an authorization for the use of military force 
described in section 2(c)(2) of the War Powers Resolution (50 
U.S.C. 1541(c)(2)) if such authorization contains a specific 
authorization for foreign intelligence collection under this 
section, or if the Congress is unable to convene because of an 
attack upon the United States.

           *       *       *       *       *       *       *


    TITLE IV--PEN REGISTERS AND TRAP AND TRACE DEVICES FOR FOREIGN 
INTELLIGENCE PURPOSES

           *       *       *       *       *       *       *


                    AUTHORIZATION DURING TIME OF WAR

  Sec. 404. Notwithstanding any other provision of law, the 
President, through the Attorney General, may authorize the use 
of a pen register or trap and trace device without a court 
order under this title to acquire foreign intelligence 
information for a period not to exceed 15 calendar days 
following a declaration of war by [Congress] Congress or an 
authorization for the use of military force described in 
section 2(c)(2) of the War Powers Resolution (50 U.S.C. 
1541(c)(2)) if such authorization contains a specific 
authorization for foreign intelligence collection under this 
section, or if the Congress is unable to convene because of an 
attack upon the United States.

           *       *       *       *       *       *       *

                              ----------                              


              SECTION 2511 OF TITLE 18, UNITED STATES CODE

Sec. 2511. Interception and disclosure of wire, oral, or electronic 
                    communications prohibited

  (1) * * *
  (2)(a)(i) * * *
  (ii) Notwithstanding any other law, providers of wire or 
electronic communication service, their officers, employees, 
and agents, landlords, custodians, or other persons, are 
authorized to provide information, facilities, or technical 
assistance to persons authorized by law to intercept wire, 
oral, or electronic communications or to conduct electronic 
surveillance, as defined in section 101 of the Foreign 
Intelligence Surveillance Act of 1978, if such provider, its 
officers, employees, or agents, landlord, custodian, or other 
specified person, has been provided with--
          (A)  * * *
          (B) a certification in writing by a person specified 
        in section 2518(7) of this title or the Attorney 
        General of the United States that no warrant or court 
        order is required by law, that all [statutory 
        requirements] requirements under this chapter, chapters 
        121 and 206, and titles I and IV of the Foreign 
        Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 
        et seq.) have been met, and that the specified 
        assistance is required,

           *       *       *       *       *       *       *

  (f) Nothing contained in this chapter or chapter 121 or 206 
of this title, or section 705 of the Communications Act of 
1934, shall be deemed to affect the acquisition by the United 
States Government of foreign intelligence information from 
international or foreign communications, or foreign 
intelligence activities conducted in accordance with otherwise 
applicable Federal law involving a foreign electronic 
communications system, utilizing a means other than electronic 
surveillance as defined in section 101 of the Foreign 
Intelligence Surveillance Act of 1978, [and procedures in this 
chapter or chapter 121 and the Foreign Intelligence 
Surveillance Act of 1978 shall be the exclusive means by which 
electronic surveillance, as defined in section 101 of such Act, 
and the interception of domestic wire, oral, and electronic 
communications may be conducted.] and procedures in this 
chapter, chapters 121 and 206 of this title, and the Foreign 
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) 
shall be the exclusive means by which electronic surveillance 
(as defined in section 101(f) of such Act), the interception of 
domestic wire, oral, and electronic communications, the 
accessing of stored electronic communications, and the 
installation and use of pen registers and trap and trace 
devices may be conducted.

           *       *       *       *       *       *       *

                              ----------                              


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)).]

                             MINORITY VIEWS

                              INTRODUCTION

    We cannot join with our majority colleagues in supporting 
H.R. 3773, the ``RESTORE Act.'' This bill is clearly designed 
to meet a political need of the Democrat majority, and not the 
country's needs during a time of continued struggle against 
radical jihadists and other hostile acts by foreign powers. 
This bill fails to provide the effective tools that the 
Intelligence Community has repeatedly stated it needs to 
efficiently collect foreign intelligence information to prevent 
and disrupt terrorist plots.
    In H.R. 3773, Congress would expressly legislate, for the 
first time, that a United States court will be required to 
approve intelligence collection on foreign targets overseas. 
Last April, the Director of National Intelligence (DNI) 
highlighted significant intelligence gaps in foreign 
intelligence collection efforts and asked for a legislative 
solution. Due to technological advancements over the years, the 
structure of the 1978 FISA bill caused the Government to seek 
and obtain court approval before targeting a foreigner overseas 
despite the clear legislative intent to provide a framework for 
collecting foreign intelligence information within the United 
States. The Committee majority did nothing about the gap for 
months, until Republicans successfully accomplished passage of 
the Protect America Act in early August.\1\ Now, this 
Committee's formal ``long-term'' proposed solution to this 
problem is to expressly inject--for the first time--a United 
States court into foreign intelligence collection abroad, with 
a two year sunset that fails entirely to provide permanent 
tools to the Intelligence Community.
---------------------------------------------------------------------------
    \1\ Indeed, we offered comprehensive FISA reform as an amendment to 
the FY '08 Intelligence Authorization bill during the Committee's 
markup and on the House floor in early May, which were rejected by the 
Democrats who instead voted to divert resources for environmental 
spying and wasteful earmarks. When the House failed to act, the DNI 
began a public campaign to underscore the worsening intelligence gap 
caused by FISA. Instead, the Committee remained focused on a historical 
review of a program that no longer exists, and subsequently canceled a 
FISA modernization hearing with the DNI pushing this critical issue 
into the fall. After sustained efforts by the Republicans, Democrats 
reluctantly moved a piece of legislation that was unacceptable to the 
DNI. After the Senate passed a bill that gave the Intelligence 
Community the tools it needed, the House finally passed a short-term 
FlSA fix on a bipartisan basis.
---------------------------------------------------------------------------

                               H.R. 3773

    H.R. 3773 is not the product of a bipartisan process. It 
does not reflect discussions between the majority and the 
minority, or discussions the Committee has had with the 
Administration. It is also important to note that the minority 
was not consulted on specific text before introduction of the 
bill, and did not receive the final text of H.R. 3773 until 
twenty-four hours before the markup. In the brief period we had 
to review the legislation before Committee consideration, we 
uncovered numerous, serious problems rendering this bill beyond 
repair.
    First, notably absent from this bill is any type of 
retroactive liability protection for carriers alleged to have 
assisted the Government following the attacks of September 11, 
2001. Without this liability protection, private companies--
that are alleged to have done exactly what their country asked 
them to--would be subjected to decades of protracted 
litigation. Moreover, these companies face improper claims for 
tens of millions of dollars in damages to scores of different 
plaintiffs. In addition, continued litigation on this front 
threatens to disclose highly classified national security 
information potentially exposing us to great harm from our 
enemies. Failing to provide retroactive liability protection to 
these companies jeopardizes the prospects for long-term 
cooperation necessary between the Intelligence Community and 
the private sector. Notwithstanding this, the majority has 
hinged this vital retroactive liability provision on a 
political battle with the White House over documents relating 
to the Terrorist Surveillance Program (TSP) described by the 
President, despite having reviewed relevant documents and 
conducted extensive interviews with former Attorney General 
Ashcroft and key Justice Department officials.
    Second, this bill expressly requires court approval to 
conduct surveillance on foreign intelligence targets overseas. 
The bill contains a hollow statement that a court order is not 
required to intercept communications between non-U.S. persons 
that are not located within the United States that fails to 
consider the practical reality of intelligence collection in 
the 21st century. This would limit the authority to only 
instances where it could be reasonably determined in advance 
that a targeted person would communicate with no U.S. person, 
and would make no call to the United States. Therefore, simply 
stating that an order shall not be required when both ends of a 
communication are known has no practical value for our 
intelligence professionals in the field.
    Third, the bill narrows the type of foreign intelligence 
that the Government can collect under the so-called ``basket 
warrants'' to include only national security foreign 
intelligence. This will force NSA analysts to make real-time 
calls as to whether they are gathering foreign intelligence for 
national security reasons or for other foreign affairs 
purposes. As we've learned from 9/11, connecting the dots is 
essential, and we need not be constructing new walls and 
creating more hoops for our intelligence professionals to jump 
through when collecting information that may turn out to be 
vital to saving lives. The original purpose behind modernizing 
FISA is to collect foreign intelligence from foreign targets 
overseas with greater efficiency, and not to create new 
barriers. Foreign targets located overseas have no privacy 
rights under U.S. laws and we should not be involving United 
States courts in approving warrants to collect information on 
them.
    Fourth, H.R. 3773 would require the Intelligence Community 
to compile a new database to track instances where U.S. person 
information was incidentally acquired when surveilling foreign 
intelligence targets overseas, and to report on databases to 
Congress. We question how the civil liberties of U.S. persons 
are better protected by creating a new, separate database of 
indefinite duration to track this information. Normally, U.S. 
person information that does not contain foreign intelligence 
information would be either expunged or age-off of NSA's 
databases. As such, this provision would alarmingly heighten 
the intrusion on the privacy of U.S. persons rather than 
protect it. The bill already contains extensive provisions for 
reporting of such instances to the Committees.
    Fifth, in addition to failing to provide retroactive 
liability protection, this bill fails to provide any liability 
protection for third parties who may assist the government 
under an emergency authorization prior to obtaining a ``basket 
order.'' Not including prospective liability protection in 
emergency authorizations jeopardizes long-term prospects for 
cooperation with private sector entities. The majority's 
failure to address this issue illustrates either sloppy 
drafting indicative of the hasty, unilateral drafting process 
this bill underwent, or a disregard for the essential service 
that third parties provide to the Intelligence Community. We 
assume the former is the case, but this flaw remains in the 
bill post-markup.
    Additionally, this bill contains no provision allowing 
third parties asked to assist the Government to challenge 
orders of the FISA Court. This protection was specifically 
provided in the Protect American Act, and it is curious that 
it's left out of this bill. Again, this omission appears to be 
a product of hasty drafting and a failure to collaborate and 
seek input when drafting the text of the bill.
    Sixth, we cannot support a bill that contains a sunset 
provision for just over two years from now. The majority 
provides for a sunset of these new provisions on December 31, 
2009, thereby failing to provide any long-term, predictable 
authority and capability to the Intelligence Community or 
outside parties. The Administration has testified before 
Congress several times citing the Intelligence Community's need 
for a modernized FISA bill and that it lacks the tools 
necessary to protect the country. Our work to permanently 
modernize FISA now spans two congresses, and nearly two years, 
and the majority would have this bill expire just over two 
years from now. Every time the law changes in a substantive 
way, the Government must go through an arduous, time consuming 
process of implementing those changes, putting into place new 
procedures, and retraining personnel on those new procedures. 
It can take months to fully implement such substantial changes 
to the law. The IC has asked for a permanent solution to a 
fundamental problem, and this Committee has responded with a 
dramatically different proposal that does not meet their needs 
and contains a two year sunset. On this timeframe, this issue 
is certain to consume this Committee for the next two years, 
and will leave the Intelligence Community in a tenuous 
position. We are committed to providing permanent, effective 
tools to the Intelligence Community to best carry out their 
mission, and are disheartened to learn that the Majority is not 
committed to doing the same.
    Seventh, the Committee also expanded the role of the FISC 
into foreign intelligence collection overseas. The FISC was 
originally created as part of a structure to conduct foreign 
intelligence surveillance within the United States. Section 3( 
e) of the RESTORE Act however, would permit judges of the FISC 
to modify an application for a ``basket order'' to conduct 
surveillance on foreign targets foreign countries, but contains 
no guidance with respect to standard of review. It is beyond us 
why the majority believes the appropriate role of a federal 
court is to oversee foreign intelligence collection and what 
link this role would have to protecting civil liberties of 
United States persons. The responsibility for foreign 
intelligence collection abroad lies squarely with the President 
under the Constitution and overwhelming precedent of the 
courts.
    In addition, FISC judges would be given the authority--in 
fact the requirement--to assess compliance with the order every 
120 days--again with no restriction to the scope of review or 
remedy. This would put judges in the extraordinary position of 
supervising intelligence professionals or even U.S. troops 
overseas. Any court review of the procedures, or processes for 
surveillance of foreign terrorists in foreign places should 
allow much greater deference to our foreign intelligence 
officials who have the expertise and authority to conduct such 
surveillance. This provision, like so many others in this bill, 
ignores the intent behind the 1978 FISA bill, which was not to 
hinder foreign intelligence gathering, but rather to provide a 
framework for intelligence gathering in the United States.
    Eighth, the Committee imposes a burdensome auditing 
requirement on the Intelligence Community and the Department of 
Justice Inspector General (DOJ IG). This provision requires the 
DOJ IG to audit compliance with the procedures in 105B every 
120 days. Not only is this incredibly burdensome, but it is 
nonsensical to require non-intelligence personnel (the DOJ IG) 
to perform an audit of Intelligence Community professionals. 
The NSA has an independent Inspector General that would be the 
more appropriate body to conduct audits on the NSA.
    Ninth, the bill seeks additional investigation into the 
Terrorist Surveillance Program, which is no longer in 
existence. Section seven of the bill requires the DOJ IG to 
perform an audit of TSP, and a section newly added during 
markup would require the President to fully inform the 
Intelligence committees on TSP. An audit by the DOJ IG would, 
once again, impose non-Intelligence Community personnel into 
the work of the Intelligence Community. More significantly, the 
DOJ IG auditing provision is of questionable constitutionality, 
as it would require an executive branch agency to audit the 
conduct of the President. It also requires the President, a 
classifying authority, to grant access to extremely sensitive 
information, and requires the IG to acquire and produce 
documents containing legal advice given to the President by his 
lawyers.
    More importantly, we remain baffled by the majority's 
continued contention that it has not been fully informed by the 
Executive Branch on these sensitive intelligence matters. 
Democratic Committee members have been fully and extensively 
briefed on TSP, as has the current Speaker of the House, since 
its inception. In addition, just four months ago this Committee 
conducted an extensive, comprehensive historical review of TSP. 
This Committee has interviewed or heard testimony from many 
current and former senior DOJ, NSA, and ODNI officials and has 
reviewed countless documents in connection with these 
activities. In addition, the Committee received briefings on 
the legal foundation for TSP and has available an unclassified, 
42 page white-paper from the Department of Justice detailing 
the legal basis for TSP, entitled ``Legal Authorities 
Supporting the Activities of the National Security Agency 
Described by the President.'' It is disingenuous and misleading 
to the American people for the majority to contend that it has 
not been fully briefed about these classified NSA surveillance 
activities. The DOJ IG audit provision is, essentially, an end 
run around the traditional mechanisms for seeking documents 
from the Executive Branch. The Committee has been negotiating 
with the White House on outstanding document requests, and the 
United States Code is not the appropriate place to air these 
disputes.
    Both of the aforementioned DOJ IG audits, as well as other 
reporting requirements in this bill would be provided jointly 
to the Judiciary Committees. The Rules of the House provide 
exclusive jurisdiction over intelligence sources and methods to 
the Committee. To the extent that these reporting requirements 
contemplate providing materials containing sources and methods, 
these provisions are inconsistent with the House Rules. We 
remain committed to preserving this Committee's jurisdiction 
under the Rules of the House, and are similarly discouraged 
that the majority is not.
    Finally, Section 10 restates the existing statutory 
provision that FISA is the exclusive means for conducting 
electronic surveillance for the purpose of gathering foreign 
intelligence information. The exclusivity provision is 
superfluous and arguably could constitute an unconstitutional 
infringement of the President's constitutional authority. The 
bill also contains a provision purporting to require a specific 
statutory authorization to conduct electronic surveillance that 
may be subject to constitutional challenge. The President's 
constitutional authority to take such measures he deems 
necessary to protect the Nation from potential future attacks 
or hostile acts of a foreign power cannot be limited by simply 
restating a statutory provision. By repeating a provision that 
it knows is already contained in FISA, and is of questionable 
constitutionality, the majority insists on focusing this debate 
on the past and not the present need to permanently modernize 
FISA. Our focus should be on modernizing FISA and giving the 
Intelligence Community the tools they need to protect this 
country, and not on partisan political rhetoric concerning a 
program that no longer exists.

                        THE PROTECT AMERICA ACT

    We offered a substitute amendment, which would have made 
PAA permanent and provided retroactive liability protection to 
third parties alleged to have assisted the Government following 
the attacks on September 11, 2001, that was summarily rejected 
by the majority citing the now debunked ``parade of 
horribles.'' The PAA represented a strong bipartisan consensus 
that was supported by forty-one Democrats in August and gave 
the Intelligence Community the tools it needed.
    The Administration has been implementing PAA with 
extraordinary transparency to this Committee. Staff and Members 
have been briefed several times, including at the NSA, have 
received copies of relevant documents, and have heard testimony 
from Administration officials in both closed and open session.
    The Committee specifically asked Administration witnesses 
to put into writing their views about the reach of this bill 
and the concerns that had been raised. In a letter, dated 
September 14, 2007, from Assistant Attorney General Kenneth L. 
Wainstein, the Justice Department made a rare, public written 
statement rebuking the ``parade of horribles'' that the 
majority cited and delineating how the Executive Branch will 
interpret the law. Specifically, Mr. Wainstein stated that 
these hypotheticals are inconsistent with a plain reading of 
the entire FISA statute and that:
     The PAA leaves undisturbed FISA's definition of 
electronic surveillance as it applies to domestic-to-domestic 
communications and surveillance targeting persons located in 
the United States, and that the Executive Branch will not use 
the PAA to ``target'' a person in the U.S. by seeking foreign 
information ``concerning'' a person abroad.
     The Executive Branch will not use the PAA to 
conduct physical searches of the homes or effects of Americans, 
including physical searches of U.S. mail, U.S. homes or 
businesses of foreign intelligence targets outside the U.S., 
and personal computers or hard drives of individuals in the 
U.S. without a court order.
     That the Executive Branch will not use PAA to 
reverse target U.S. persons inside the United States, as doing 
so would be a violation of FISA.
     That 105B of PAA does not authorize the collection 
of, for example, of medical or library records for foreign 
intelligence purposes and that the Executive Branch will not 
use this authority to obtain business records of individuals 
located in the U.S. on the theory that they ``concern'' persons 
outside the U.S.
    Further, the Administration has repeatedly expressed its 
willingness to consider language from the Committee that would 
clarify or narrow language in the PAA to address these 
perceived ambiguities. Notwithstanding such transparency, and 
willingness to clarify the bill, this Committee passed a bill 
that essentially takes three steps back following our one, big 
step forward in enacting the PAA. This committee has not raised 
any specific concerns with actual implementation and, to the 
contrary has been continually reassured by those implementing 
the bill. With all of the questions and concerns addressed, the 
majority instead reverted to an ill-conceived partisan bill.
    Continuation of the PAA ensures that the IC will not go 
dark against terrorists, that we don't give radical jihadists 
greater rights than those afforded to Americans in court 
ordered surveillance in criminal cases, and that we have a 
permanent solution to the intelligence gaps that we potentially 
face. The House should act immediately to accomplish these 
goals.
                                   Peter Hoekstra.
                                   Terry Everett.
                                   Elton Gallegly.
                                   Heather Wilson.
                                   Mac Thornberry.
                                   John McHugh.
                                   Todd Tiahrt.
                                   Mike Rogers.
                                   Darrell Issa.

                                  
