[House Report 110-385]
[From the U.S. Government Publishing Office]
110th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 110-385
======================================================================
PROVIDING FOR CONSIDERATION OF 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
_______
October 16, 2007.--Referred to the House Calendar and ordered to be
printed
_______
Mr. Hastings of Florida, from the Committee on Rules, submitted the
following
R E P O R T
[To accompany H. Res. 746]
The Committee on Rules, having had under consideration
House Resolution 746, by a record vote of 8 to 4, report the
same to the House with the recommendation that the resolution
be adopted.
SUMMARY OF PROVISIONS OF THE RESOLUTION
The resolution provides for consideration of H.R. 3773, the
``RESTORE Act of 2007,'' under a closed rule. The resolution
provides for 90 minutes of debate, with 60 minutes equally
divided and controlled by the chairman and ranking minority
member of the Committee on the Judiciary and 30 minutes equally
divided and controlled by the chairman and ranking minority
member of the Permanent Select Committee on Intelligence.
The resolution waives all points of order against
consideration of the bill except those arising under clause 9
or 10 of rule XXI. In lieu of the amendments recommended by the
Committee on the Judiciary and the Permanent Select Committee
on Intelligence, the resolution considers as adopted the
amendment in the nature of a substitute printed in part A of
this report, modified by the amendment printed in part B of
this report, and considers the bill, as amended, as read. The
resolution waives all points of order against provisions in the
bill, as amended. This waiver does not affect the point of
order available under clause 9 of rule XXI (regarding earmark
disclosure). The resolution provides one motion to recommit
with or without instructions. Finally, the resolution permits
the Chair, during consideration of the bill, to postpone
further consideration of it to a time designated by the
Speaker.
EXPLANATION OF WAIVERS
The waiver of all points of order against the bill and its
consideration (except those arising under clause 9 or 10 of
rule XXI) includes a waiver of clause 3(c)(4) of rule XIII
(statement of performance goals) with respect to the report of
the Permanent Select Committee on Intelligence.
COMMITTEE VOTES
The results of each record vote on an amendment or motion
to report, together with the names of those voting for and
against, are printed below:
Rules Committee record vote No. 351
Date: October 16, 2007.
Measure: H.R. 3773.
Motion by: Mr. Dreier.
Summary of motion: To grant an open rule.
Results: Defeated 4-8.
Vote by Members: McGovern--Nay; Hastings (FL)--Nay;
Matsui--Nay; Cardoza--Nay; Welch--Nay; Castor--Nay; Arcuri--
Nay; Dreier--Yea; Diaz-Balart--Yea; Hastings (WA)--Yea;
Sessions--Yea; Slaughter--Nay.
Rules Committee record vote No. 352
Date: October 16, 2007.
Measure: H.R. 3773.
Motion by: Mr. Dreier.
Summary of motion: To make in order and provide appropriate
waivers for an Amendment in the Nature of a Substitute by Rep.
Forbes (VA), #9, which would incorporate the Bush
Administration's proposed FISA Modernization Act of 2007 from
April 2007.
Results: Defeated 4-8.
Vote by Members: McGovern--Nay; Hastings (FL)--Nay;
Matsui--Nay; Cardoza--Nay; Welch--Nay; Castor--Nay; Arcuri--
Nay; Dreier--Yea; Diaz-Balart--Yea; Hastings (WA)--Yea;
Sessions--Yea; Slaughter--Nay.
Rules Committee record vote No. 353
Date: October 16, 2007.
Measure: H.R. 3773.
Motion by: Mr. Diaz-Balart.
Summary of motion: To make in order and provide appropriate
waivers for an amendment by Rep. Issa (CA), #5, which would
extend liability protection to telecommunications and other
communication providers who relied on directives or orders from
the government to assist the government with intelligence
activities intended to protect the United States from another
terrorist attack, from the period beginning on September 11,
2001 and ending on the date of enactment of this Act.
Results: Defeated 4-8.
Vote by Members: McGovern--Nay; Hastings (FL)--Nay;
Matsui--Nay; Cardoza--Nay; Welch--Nay; Castor--Nay; Arcuri--
Nay; Dreier--Yea; Diaz-Balart--Yea; Hastings (WA)--Yea;
Sessions--Yea; Slaughter--Nay.
Rules Committee record vote No. 354
Date: October 16, 2007.
Measure: H.R. 3773.
Motion by: Mr. Diaz-Balart.
Summary of motion: To make in order and provide appropriate
waivers for an amendment by Rep. Lungren (CA), #4, which would
extend FISA to include individuals and groups engaged in the
proliferation of weapons of mass destruction.
Results: Defeated 4-8.
Vote by Members: McGovern--Nay; Hastings (FL)--Nay;
Matsui--Nay; Cardoza--Nay; Welch--Nay; Castor--Nay; Arcuri--
Nay; Dreier--Yea; Diaz-Balart--Yea; Hastings (WA)--Yea;
Sessions--Yea; Slaughter--Nay.
Rules Committee record vote No. 355
Date: October 16, 2007.
Measure: H.R. 3773.
Motion by: Mr. Hastings (WA).
Summary of motion: To make in order and provide appropriate
waivers for an amendment by Rep. Gohmert (TX), #8, which would
eliminate the requirements in the bill that the government
obtain a FISA court order to acquire communications of non-
United States persons who are reasonably believed to be located
outside the United States.
Results: Defeated 4-8.
Vote by Members: McGovern--Nay; Hastings (FL)--Nay;
Matsui--Nay; Cardoza--Nay; Welch--Nay; Castor--Nay; Arcuri--
Nay; Dreier--Yea; Diaz-Balart--Yea; Hastings (WA)--Yea;
Sessions--Yea; Slaughter--Nay.
Rules Committee record vote No. 356
Date: October 16, 2007.
Measure: H.R. 3773.
Motion by: Mr. Hastings (WA).
Summary of motion: To make in order and provide appropriate
waivers for an amendment by Rep. Hoekstra (MI), #19, which
would strike the sunset provision in the RESTORE Act, currently
December 31, 2009.
Results: Defeated 4-8.
Vote by Members: McGovern--Nay; Hastings (FL)--Nay;
Matsui--Nay; Cardoza--Nay; Welch--Nay; Castor--Nay; Arcuri--
Nay; Dreier--Yea; Diaz-Balart--Yea; Hastings (WA)--Yea;
Sessions--Yea; Slaughter--Nay.
Rules Committee record vote No. 357
Date: October 16, 2007.
Measure: H.R. 3773.
Motion by: Mr. Hastings (WA).
Summary of motion: To make in order and provide appropriate
waivers for an amendment by Rep. Hoekstra (MI), #24, which
would strike provisions in the bill that limit the definition
of ``foreign intelligence information'' to information
necessary to protect against attack by a foreign power or
information with respect to a foreign power that relates to
national defense. The amendment would broaden the bill's
definition of FII to information with respect to a foreign
power that could be necessary to the foreign affairs of the
United States.
Results: Defeated 4-8.
Vote by Members: McGovern--Nay; Hastings (FL)--Nay;
Matsui--Nay; Cardoza--Nay; Welch--Nay; Castor--Nay; Arcuri--
Nay; Dreier--Yea; Diaz-Balart--Yea; Hastings (WA)--Yea;
Sessions--Yea; Slaughter--Nay.
Rules Committee record vote No. 358
Date: October 16, 2007.
Measure: H.R. 3773.
Motion by: Mr. McGovern.
Summary of motion: To grant the rule.
Results: Adopted 8-4.
Vote by Members: McGovern--Yea; Hastings (FL)--Yea;
Matsui--Yea; Cardoza--Yea; Welch--Yea; Castor--Yea; Arcuri--
Yea; Dreier--Nay; Diaz-Balart--Nay; Hastings (WA)--Nay;
Sessions--Nay; Slaughter--Yea.
SUMMARY OF AMENDMENT IN PART A TO BE CONSIDERED AS ADOPTED
The RESTORE Act would provide a new authority for the
Executive Branch to conduct surveillance of persons reasonably
believed to be located outside the United States. This new
authority allows the government to obtain a single order to
authorize surveillance on multiple targets and provides for
immediate surveillance in the event of an emergency. It also
includes several provisions to allow for independent oversight
by the courts, the Congress and the Department of Justice
Inspector General. Additional sections of the Act provide
resources to Department of Justice, NSA, and the FISA Court
needed to assist in auditing these new authorities and to
expedite the FISA applications process. The RESTORE Act would
also require the Department of Justice Inspector General to
conduct an audit of the Administration's warrantless
surveillance programs--to include providing authorizations and
legal memoranda to Congress. It includes a sunset provision
that would repeal the RESTORE Act by December 31, 2009.
SUMMARY OF AMENDMENT IN PART B TO BE CONSIDERED AS ADOPTED
The amendment would clarify that no court order is required
for surveillance where the sender and recipients are not known
to be United States persons and reasonably believed to be
located outside the United States. It would also allow the FISA
Court to issue temporary orders authorizing surveillance
pending the appeal of an application under section 105B.
Further, it would require that any directive seeking the
assistance of a communications service provider in conducting
surveillance include a certification that the directive is in
compliance with specific, relevant provisions of FISA. It would
extend the statute of limitations for the penalty provisions of
FISA from five years to ten years. Finally, it would clarify
that the RESTORE Act does not confer any rights or privileges
on non-United States persons.
PART A--TEXT OF AMENDMENT TO BE CONSIDERED AS ADOPTED
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. Additional authorization of acquisitions of communications of
non-United States persons located outside the United States
who may be communicating with persons inside the United
States.
Sec. 4. Emergency authorization of acquisitions of communications of
non-United States persons located outside the United States
who may be communicating with persons inside the United
States.
Sec. 5. Oversight of acquisitions of communications of non-United States
persons located outside of the United States who may be
communicating with persons inside the United States.
Sec. 6. Foreign Intelligence Surveillance Court en banc.
Sec. 7. Foreign Intelligence Surveillance Court matters.
Sec. 8. Reiteration of FISA as the exclusive means by which electronic
surveillance may be conducted for gathering foreign
intelligence information.
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. Document management system for applications for orders
approving electronic surveillance.
Sec. 14. Training of intelligence community personnel in foreign
intelligence collection matters.
Sec. 15. Information for Congress on the terrorist surveillance program
and similar programs.
Sec. 16. Technical and conforming amendments.
Sec. 17. 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. ADDITIONAL AUTHORIZATION OF ACQUISITIONS OF COMMUNICATIONS OF
NON-UNITED STATES PERSONS LOCATED OUTSIDE THE
UNITED STATES WHO MAY BE COMMUNICATING WITH INSIDE
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:
``ADDITIONAL AUTHORIZATION OF ACQUISITIONS OF COMMUNICATIONS OF NON-
UNITED STATES PERSONS LOCATED OUTSIDE THE UNITED STATES WHO MAY BE
COMMUNICATING WITH PERSONS INSIDE 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 who may be
communicating with persons inside 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 persons that are the targets of
the acquisition 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 WHO MAY BE COMMUNICATING WITH PERSONS
INSIDE 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 WHO MAY BE
COMMUNICATING WITH PERSONS INSIDE 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 (as defined in
paragraph (1) or (2)(A) of section 101(e)) 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 who may be
communicating with persons inside the United
States;
``(C) the targets of the acquisition are
reasonably believed to be persons that are not
United States persons;
``(D) there are procedures in place that will
be used by the Director of National
Intelligence and the Attorney General during
the duration of the authorization to determine
if there is a reasonable belief that the
persons that are the targets of the acquisition
are 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
WHO MAY BE COMMUNICATING WITH PERSONS INSIDE 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 WHO MAY BE COMMUNICATING
WITH PERSONS INSIDE THE UNITED STATES
``Sec. 105D. (a) Application; Procedures; Orders.--Not later
than 7 days after an application is submitted under section
105B(a) or an order is issued under section 105B(e), the
Director of National Intelligence and the Attorney General
shall submit to the appropriate committees of Congress--
``(1) in the case of an application--
``(A) a copy of the application, including
the certification made under section
105B(b)(1); and
``(B) a description of the primary purpose of
the acquisition for which the application is
submitted; and
``(2) in the case of an order, a copy of the order,
including the procedures and guidelines referred to in
section 105B(e)(1)(E).
``(b) Regular 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 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
procedures referred to in section 105B(e)(1)(E)(i);
``(2) an element of the intelligence community with
minimization 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, two
ems from the left margin.
(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 FISA AS THE EXCLUSIVE MEANS BY WHICH ELECTRONIC
SURVEILLANCE MAY BE CONDUCTED FOR GATHERING FOREIGN
INTELLIGENCE INFORMATION.
(a) Exclusive Means.--Notwithstanding any other provision of
law, the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.) shall be the exclusive means by which
electronic surveillance may be conducted for the purpose of
gathering foreign intelligence information.
(b) Specific Authorization Required for Exception.--
Subsection (a) shall apply until specific statutory
authorization for electronic surveillance, other than as an
amendment to the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et seq.), is enacted. Such specific statutory
authorization shall be the only exception to subsection (a).
SEC. 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.
(a) In General.--There are authorized to be appropriated the
Department of Justice, for the activities of the Office of the
Inspector General, the 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.
(b) Additional Personnel for Preparation and Consideration of
Applications for Orders Approving Electronic Surveillance and
Physical Search.--
(1) National security division of the department of
justice.--
(A) Additional personnel.--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.
(B) 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.
(2) Director of national intelligence.--
(A) 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.
(B) 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.
(3) 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.
(4) Supplement not supplant.--The personnel
authorized by this section are in addition to any other
personnel authorized by law.
SEC. 13. 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. 14. 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. 15. 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. 16. 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. Additional authorization of acquisitions of communications
of non-United States persons located outside the United States
who may be communicating with persons inside the United
States.
``Sec. 105C. Emergency authorization of acquisitions of communications
of non-United States persons located outside the United States
who may be communicating with persons inside the United
States.
``Sec. 105D. Oversight of acquisitions of communications of non-United
States persons located outside of the United States who may be
communicating with persons inside 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.--Sections 4 and 6 of the Protect America Act (Public Law
110-55) are hereby repealed.
SEC. 17. 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)).
PART B--TEXT OF AMENDMENT TO BE CONSIDERED AS ADOPTED
Page 2, strike lines 10 through 18 and insert the following:
``Sec. 105A. (a) Foreign to Foreign Communications.--
``(1) In general.--Notwithstanding any other
provision of this Act, a court order is not required
for electronic surveillance directed at the acquisition
of the contents of any communication between persons
that are not known to be United States persons and are
reasonably believed to be located outside 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.
``(2) Treatment of inadvertent interceptions.--If
electronic surveillance referred to in paragraph (1)
inadvertently collects a communication in which at
least one party to the communication is located inside
the United States or is a United States person, the
contents of such communication shall be handled in
accordance with minimization procedures adopted by the
Attorney General that require that no contents of any
communication to which a United States person is a
party shall be disclosed, disseminated, or used for any
purpose or retained for longer than 7 days unless a
court order under section 105 is obtained or unless the
Attorney General determines that the information
indicates a threat of death or serious bodily harm to
any person.
Page 3, line 16 strike ``COMMUNICATING WITH'' and insert
``COMMUNICATING WITH PERSONS''.
Page 6, line 20, strike ``Application.--Not later than'' and
insert the following: ``Application; Appeals.--
``(1) Review of application.--Not later than''
Page 6, line 24, redesignate paragraph (1) as subparagraph
(A).
Page 7, line 4, redesignate paragraph (2) as subparagraph
(B).
Page 7, line 8, redesignate paragraph (3) as subparagraph
(C).
Page 7, after line 14 insert the following:
``(2) Temporary order; appeals.--
``(A) Temporary order.--A judge denying an
application under paragraph (1) may, at the
application of the United States, issue a
temporary order to authorize an acquisition
under section 105B in accordance with the
application submitted under subsection (a)
during the pendency of any appeal of the denial
of such application.
``(B) Appeals.--The United States may appeal
the denial of an application for an order under
paragraph (1) or a temporary order under
subparagraph (A) in accordance with section
103.
Page 8, line 19, strike ``and''.
Page 8, after line 22 insert the following:
``(iii) a certification stating that
the acquisition is authorized under
this section and that all requirements
of this section have been met; and''.
Page 14, line 2, strike ``Assistance.--Pursuant to'' and
insert the following: ``Assistance.--
``(1) Directive.--Pursuant to''
Page 14, line 9, redesignate paragraph (1) as subparagraph
(A).
Page 14, line 16, redesignate paragraph (2) as subparagraph
(B).
Page 14, line 19, strike the quotation mark and the second
period.
Page 14, after line 19 insert the following:
``(2) Parameters; certifications.--The Attorney
General shall provide to any person directed to provide
assistance under paragraph (1) with--
``(A) a document setting forth the parameters
of the directive;
``(B) a certification stating that--
``(i) the emergency authorization has
been issued pursuant to this section;
``(ii) all requirements of this
section been met;
``(iii) a judge has been informed of
the emergency authorization in
accordance with subsection (b)(2); and
``(iv) an application will be
submitted in accordance with subsection
(a); and
``(C) a certification that the recipient of
the directive shall be compensated, at the
prevailing rate, for providing information,
facilities, or assistance pursuant to such
directive.''.
Page 31, line 2, strike ``Protect America Act'' and insert
``Protect America Act of 2007''.
At the appropriate place in the bill insert the following new
section:
SEC. __. CERTIFICATION TO COMMUNICATIONS SERVICE PROVIDERS THAT
ACQUISITIONS ARE AUTHORIZED UNDER FISA.
(a) Authorization Under Section 102.--Section 102(a) of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1802(a)) is amended by striking ``furnishing such aid'' and
inserting ``furnishing such aid and shall provide such carrier
with a certification stating that the electronic surveillance
is authorized under this section and that all requirements of
this section have been met''.
(b) Authorization Under Section 105.--Section 105(c)(2) of
such Act (50 U.S.C. 1805(c)(2)) is amended--
(1) in subparagraph (C), by striking ``; and'' and
inserting ``;'';
(2) in subparagraph (D), by striking ``aid.'' and
inserting ``aid; and''; and
(3) by adding at the end the following new
subparagraph:
``(E) that the applicant provide such
carrier, landlord, custodian, or other person
with a certification stating that the
electronic surveillance is authorized under
this section and that all requirements of this
section have been met.''.
At the appropriate place in the bill insert the following new
section:
SEC. __. STATUTE OF LIMITATIONS.
(a) In General.--Section 109 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1809) is amended by adding
at the end the following new subsection:
``(e) Statute of Limitations.--No person shall be prosecuted,
tried, or punished for any offense under this section unless
the indictment is found or the information is instituted not
later than 10 years after the commission of the offense.''.
(b) Application.--The amendment made by subsection (a) shall
apply to any offense committed before the date of the enactment
of this Act if the statute of limitations applicable to that
offense has not run as of such date.
At the appropriate place in the bill insert the following new
section:
SEC. __. NO RIGHTS UNDER THE RESTORE ACT FOR UNLAWFUL RESIDENTS.
Nothing in this Act or the amendments made by this Act shall
be construed to prevent lawfully conducted surveillance of or
grant any rights to an alien not lawfully permitted to be in or
remain in the United States.