[Senate Report 110-209]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 453
110th Congress                                                   Report
                                 SENATE
 1st Session                                                    110-209

======================================================================



 
  FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978 AMENDMENTS ACT OF 2007

                                _______
                                

                October 26, 2007.--Ordered to be printed

                                _______
                                

 Mr. Rockefeller, from the Select Committee on Intelligence, submitted 
                             the following

                              R E P O R T

                             together with

                     ADDITIONAL AND MINORITY VIEWS

                         [To accompany S. 2248]

    The Select Committee on Intelligence, having considered an 
original bill (S. 2248) to amend the Foreign Intelligence 
Surveillance Act of 1978, to modernize and streamline the 
provisions of that Act and for other purposes, reports 
favorably thereon and recommends that the bill do pass.

                  Background and Need for Legislation

    The Committee, since its inception in 1976, has exercised 
sustained oversight of the Executive branch's use of electronic 
surveillance for foreign intelligence purposes. A central focus 
of that oversight has been the implementation of the Foreign 
Intelligence Surveillance Act of 1978 (``FISA'') by the 
Executive branch and by the special court established by 
Congress to provide judicial oversight of FISA, the Foreign 
Intelligence Surveillance Court (``FISA Court'').
    Since the President's acknowledgement of the existence of a 
presidential program on December 17, 2005, which has been 
publicly described as the Terrorist Surveillance Program, the 
Committee has sought to inquire vigorously into the President's 
authorization for the National Security Agency (``NSA'') to 
conduct electronic surveillance within the United States 
without FISA court orders. In the past year, the ability of the 
full Committee to perform the Committee's oversight 
responsibilities has been significantly augmented by improved 
access to information about the program, as well as information 
about the shift of activities under that presidential 
authorization to activities in accordance with orders of the 
FISA Court.
    The Committee has also carefully reviewed the impact of 
technological change on FISA collection to assess whether 
amendments to FISA should be enacted. On March 23, 2007, the 
Chairman and Vice Chairman notified the Attorney General of 
their intention to focus on whether FISA should be modernized 
and whether legislation should be enacted to address legal 
consequences arising from the Terrorist Surveillance Program. 
The Chairman and Vice Chairman also gave notice of their 
intention to establish a public record on the question of FISA 
modernization and requested that the Administration submit a 
formal legislative request addressing the intelligence 
challenges arising under FISA in a manner consistent with the 
Constitution. The Director of National Intelligence (``DNI'') 
submitted a proposal on April 12, 2007.
    The Committee received the cooperation of many officials 
from the intelligence community and the Department of Justice 
in its oversight activities. The Committee held seven hearings 
in 2007 on the issues, received many classified briefings, 
propounded and received answers to many written questions, and 
conducted extensive interviews with several attorneys in the 
Executive branch who were involved in the review of the 
President's program. In addition, the Committee received formal 
testimony from companies alleged to have participated in the 
program and reviewed correspondence that was provided to 
private sector entities concerning the President's program. The 
Committee secured Inspector General reports and the orders and 
opinions issued by the FISA Court following the shift of 
activities to the judicial supervision of the FISA Court. The 
Committee invited statements from experts on national security 
law and civil liberties and Committee staff met periodically 
with them. The Committee has also examined the extensive 
testimony given before other committees in the last several 
years.
    In one particular respect, the Committee's effort to secure 
information pertaining to the program was more difficult than 
it should have been. The Committee repeatedly requested to see 
the text of the presidential authorizations for intelligence 
collection outside of FISA and the legal opinions of the 
Department of Justice that supported those authorizations. 
Although the Committee had been learning about the substance of 
these documents from witnesses, seeing the actual text was 
important for obtaining a complete understanding of the 
program. These documents were only made available to the 
Committee for the first time on October 9, 2007. The Committee 
believes it has been given access to all of the authorizations 
and opinions it requested; however, its study of these 
documents will continue following the filing of this report.
    Based on its inquiry, the Committee has concluded that: (1) 
the Protect America Act, enacted in early August, should be 
revised; (2) FISA should be amended to provide an additional 
procedure to facilitate the targeting of persons reasonably 
believed to be outside the United States to acquire foreign 
intelligence information; (3) additional protections should be 
afforded to U.S. persons whose communications are targeted for 
collection or collected incidentally; and (4) narrowly 
circumscribed civil immunity should be afforded to companies 
that may have participated in the President's program based on 
written requests or directives that asserted the program was 
determined to be lawful.

               THE FOREIGN INTELLIGENCE SURVEILLANCE ACT

    Created, in part, in response to the surveillance abuses 
documented by the hearings in the mid 1970s of the Church and 
Pike Committees, the Committee helped write the Foreign 
Intelligence Surveillance Act of 1978. FISA, supported by 
President Ford and signed into law by President Carter, 
established an independent court to oversee and authorize 
electronic surveillance as defined in the statute, special 
procedures for the Executive branch to act in emergencies and 
wartime, and reporting requirements to the Congress.
    FISA offered the Executive branch the certainty of a legal 
framework, and the affirmation of the Congress, for its 
intelligence collection activities. While the Supreme Court had 
expressly declined to address the issues related to 
surveillance of foreign powers and agents of a foreign power in 
its landmark 1972 decision known as the Keith case, the Court 
had held that Section 2511(3) of the Omnibus Crime Control and 
Safe Streets Act did not constitute a grant of power to the 
President with respect to national security surveillances and 
that electronic surveillance in domestic security matters 
requires an appropriate prior warrant procedure. See United 
States v. United States District Court, 407 U.S. 297 (1972). 
Whatever the reasonable exercise of presidential power to 
protect national security may have been in the 1970s, the 
enactment of FISA clarified the validity of the use of 
information collected under the statute as evidence in 
subsequent court proceedings. The Act ensured that 
telecommunication carriers that responded to a FISA court order 
were given statutory protection against civil liability. Most 
importantly, the Act represented a balancing by two branches of 
the government of the security and civil liberties of the 
American people. As President Carter noted in his signing 
statement: ``It provides a basis for the trust of the American 
people in the fact that the activities of their intelligence 
agencies are both effective and lawful.''
    The FISA process has assisted the Government in securing 
valuable intelligence over almost 30 years. To ensure that it 
continues to do so, the statute has been amended many times 
with the assistance of the Committee to address changing 
threats, technological challenges, and problems in its 
implementation. In 1994, for example, FISA was amended to cover 
physical searches conducted for foreign intelligence purposes. 
After the terrorist attacks of September 11, 2001, in the USA 
PATRIOT Act, Congress amended FISA, among other things, to 
enhance communication and coordination between law enforcement 
and intelligence personnel, authorize roving wiretaps for 
foreign intelligence collection, and expand the range of 
business records that could be obtained with a FISA order. In 
other measures since the September 11th attacks, the 
Administration has sought, and the Congress has passed, 
amendments to FISA to assist the Government in its efforts to 
detect and prevent terrorist attacks.

                        THE PRESIDENT'S PROGRAM

    In December 2005, the American people, and almost all of 
the Congress, learned for the first time that, shortly after 
September 11, 2001, President Bush had authorized the NSA to 
conduct surveillance activities in the United States to protect 
the country from future terrorist attacks. The NSA program was 
described by the Department of Justice in January 2006 as ``an 
early warning system . . . to detect and prevent the next 
terrorist attack . . . a program with a military nature that 
requires speed and agility.''
    After the attacks of September 11, 2001, Congress passed a 
joint resolution on September 14, 2001, declaring that the 
attacks ``continue to pose an unusual and extraordinary 
threat'' to the country and calling on the President ``to use 
all necessary and appropriate force against those nations, 
organizations, or persons he determines planned, authorized, 
committed, or aided the terrorist attacks that occurred on 
September 11, 2001, or harbored such organizations or persons, 
in order to prevent any further acts of international terrorism 
against the United States . . . .''. Authorization for Use of 
Military Force, Pub. L. No. 107-40, section 2(a), 115 Stat. 224 
(2001). The President also declared a national emergency on 
September 14, 2001, stating that there was ``a continuing and 
immediate threat of further attacks on the United States.'' The 
intelligence community assessed in October 2001 that additional 
waves of al Qaeda attacks were imminent. This assessment was 
manifested in the mobilization of 35,000 reservists and 
National Guard troops for homeland defense; actions by the 
Attorney General putting all federal and state law enforcement 
officials and the U.S. business community on the ``highest 
level of alert''; and the formal announcement of the FBI that 
the Government had reason to believe that new terrorist attacks 
might be launched in the United States over the next several 
days. It was during this period that the President first 
authorized the program.
    Although the intelligence community assessed the threat to 
be imminent in October 2001, its concerns have persisted to the 
present day. The United Kingdom aviation plot of August 2006 
and the bombing plots in Germany in 2007 are only two of the 
most recent examples of the continuing threat.
    The NSA's activities were reauthorized by the President on 
a periodic basis through January 2007. Over time, the program 
was modified to reflect new contingencies. Attorneys from the 
Office of Legal Counsel of the Department of Justice generated 
legal opinions throughout the duration of the program.
    In a letter to the Congress on January 17, 2007, the 
Attorney General announced that a judge of the Foreign 
Intelligence Surveillance Court ``had issued orders authorizing 
the government to target for collection international 
communications where there is probable cause to believe one of 
the communicants is a member or agent of al Qaeda or an 
associated terrorist group. 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 Foreign Intelligence Surveillance Court.''

              THE FISA COURT ORDERS AND FISA MODERNIZATION

    On April 12, 2007, the Director of National Intelligence 
J.M. McConnell submitted to the Congress the Administration's 
proposal to modernize the Foreign Intelligence Surveillance 
Act. According to the DNI, the proposal was intended to bring 
FISA ``up to date with the changes in communications 
technology,'' preserve ``the privacy interests of persons in 
the United States,'' and secure assistance from private 
entities, in part by making certain ``they are protected from 
liability for having assisted the government in its 
counterterrorism efforts.'' The Committee held a hearing on the 
proposal on May 1, 2007, with the DNI, the Director of the 
National Security Agency, and the Assistant Attorney General 
for National Security, with additional testimony solicited for 
the record from a range of experts on national security law and 
civil liberties.
    The Administration's proposal for FISA modernization was 
comprehensive, and had been coordinated within the Department 
of Justice and the intelligence community. At the end of May 
2007, however, attention was drawn to a ruling of the FISA 
Court. When a second judge of the FISA Court considered renewal 
of the January 2007 FISA orders, he issued a ruling that the 
DNI later described as significantly diverting NSA analysts 
from their counterterrorism mission to provide information to 
the Court. In late July, the DNI informed Congress that the 
decision of the second FISA Court judge had led to degraded 
capabilities in the face of a heightened terrorist threat 
environment. The DNI urged the Congress to act prior to the 
August recess to eliminate the requirement of a court order to 
collect foreign intelligence about foreign targets located 
overseas.

                        THE PROTECT AMERICA ACT

    During the final week of July, the House and Senate 
considered several measures to meet the requirements of the 
DNI. On August 3, 2007, the Senate adopted S. 1927, the Protect 
America Act of 2007 (the PAA), and the House passed the bill on 
August 4, 2007. Signed by the President on August 5, 2007, 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, 
if the acquisition involved the assistance of a communication 
service provider, custodian or other person, and a significant 
purpose of the collection was the acquisition of foreign 
intelligence information. The Act was set to sunset after 180 
days, on February 1, 2008.
    The PAA sparked serious concerns about its reach and scope. 
The Committee immediately began to review the Act's 
implementation. The Committee also began a series of 
consultations to draft a bipartisan proposal to replace the PAA 
that would authorize the acquisition of foreign intelligence 
information in light of the advances in technology since 1978 
with improved protections for the privacy interests of 
Americans whose communications might be targeted or 
incidentally collected. Finally, recognizing the importance of 
the private sector in assisting law enforcement and 
intelligence officials in critical criminal justice and 
national security activities, the Committee reviewed a range of 
possible responses to pending civil litigation.

               TITLE I OF THE FISA AMENDMENTS ACT OF 2007

    In the FISA Amendments Act of 2007, the Committee's goal 
has been to develop a sound legal framework for essential 
intelligence activities in a manner consistent with the U.S. 
Constitution. As in the Protect America Act, the Attorney 
General and the Director of National Intelligence may authorize 
the targeting of foreign terrorists and other foreign 
intelligence targets reasonably believed to be located outside 
the United States for the purpose of acquiring foreign 
intelligence without obtaining individualized court orders from 
the Foreign Intelligence Surveillance Court, but the bill also 
significantly increases protections of the civil liberties of 
U.S. persons located inside and outside the United States.
    The FISA Amendments Act of 2007 contains both specific 
limitations and explicit prohibitions with respect to the 
collection of U.S. person information. The Protect America Act 
authorized the acquisition of foreign intelligence information 
``concerning'' persons outside the United States. The vagueness 
of the word ``concerning'' created uncertainty as to whether 
persons inside the United States could be targeted to obtain 
information ``concerning'' persons outside the United States. 
Under this bill, acquisition is permitted only if it 
``targets'' persons who are reasonably believed to be located 
outside the United States.
    In addition, the bill prohibits reverse targeting: 
conducting surveillance on someone outside the United States 
for the purpose of targeting a particular known person in the 
United States. The bill maintains the general requirement that 
electronic surveillance of a person within the United States 
for foreign intelligence purposes must be done in accordance 
with an order from the FISA Court. The bill also requires the 
Government to obtain an order from the Foreign Intelligence 
Surveillance Court prior to targeting U.S. persons overseas 
under the authority of the bill.
    The FISA Amendments Act of 2007 increases the role of the 
FISA Court with respect to targeting under the authority of the 
Act. Unlike the Protect America Act, the FISA Amendments Act 
mandates FISA Court review and approval of the minimization 
procedures governing the protection of the identities and non-
public information about U.S. persons. The FISA Amendments Act 
of 2007 also provides statutory rules for the use of 
information acquired under the Act, something that was not 
included in the Protect America Act. The new Title VII created 
by this bill specifically provides that information from Title 
VII acquisitions will be governed by the statutory rules that 
are applicable to electronic surveillance.
    The Committee chose to repeal the operative provisions of 
the Protect America Act in this bill. The Committee set the 
duration of this Act at six years with the expectation that the 
Congress would exercise continuing oversight of operations 
carried out under its authority. The Committee established 
transition procedures intended to set clear rules for the 
treatment of orders, authorizations, and directives initiated 
under the authority of the Foreign Intelligence Surveillance 
Act both before and after the enactment of the Protect America 
Act, and under this Act.
    The Committee also reaffirmed the 1978 statement in FISA 
that the Act and provisions of Title 18 are the exclusive means 
by which electronic surveillance and the interception of 
domestic communications may be conducted.

                    Background on Pending Litigation


     CIVIL SUITS AGAINST ELECTRONIC COMMUNICATION SERVICE PROVIDERS

    After the media reported the existence of a surveillance 
program in December of 2005, lawsuits were filed against a 
variety of electronic communication service providers for their 
alleged participation in the program reported in the media. As 
of the date of this Committee report, more than forty lawsuits 
relating to that reported surveillance program had been 
transferred to a district court in the Northern District of 
California by the Judicial Panel on Multidistrict Litigation.
    The lawsuits allege that electronic communication service 
providers assisted the federal government in intercepting phone 
and internet communications of people within the United States, 
for the purpose of both analyzing the content of particular 
communications and searching millions of communications for 
patterns of interest. Some of the lawsuits against the 
providers seek to enjoin the providers from furnishing records 
to the intelligence community. Other suits seek damages for 
alleged statutory and constitutional violations from the 
alleged provision of records to the intelligence community. 
Collectively, these suits seek hundreds of billions of dollars 
in damages from electronic communication service providers.
    The Government intervened in a number of these suits to 
assert the state secrets privilege over particular facts, 
including whether the companies being sued assisted the 
Government. The Government also sought to dismiss the suits on 
state secrets grounds, arguing that the very subject matter of 
the lawsuits is a state secret. Ultimately, this Government 
assertion of the state secrets privilege seeks to preclude 
judicial review of whether, and pursuant to what authorities, 
any particular provider assisted the Government.
    Although the Government has sought to dismiss these suits, 
the future outcome of this litigation is uncertain. Even if 
these suits are ultimately dismissed on state secrets or other 
grounds, litigation is likely to be protracted, with any 
additional disclosures resulting in renewed applications to the 
court to allow litigation to proceed.

                    STATE REGULATORY INVESTIGATIONS

    In addition to the civil declaratory judgment and damages 
suits, a number of state public utilities commissions have 
opened investigations of electronic communication service 
providers for their alleged provision of assistance to the 
intelligence community. These public utilities commissions are 
seeking to investigate whether the companies violated state 
privacy rights by providing customer records to agencies of the 
federal government.
    The federal government filed suit seeking to enjoin state 
officials in five states from further investigation of 
electronic communication service providers for their alleged 
disclosure of customer telephone records to the National 
Security Agency. These cases were transferred by the Judicial 
Panel on Multidistrict Litigation to the Northern District of 
California in February 2007. In July 2007, the district court 
found that these state investigations were not preempted by 
either the Supremacy Clause or the foreign affairs power of the 
federal government.
    The Government may yet prevail in preventing state 
regulatory investigations of whether particular providers 
furnished customer records to the intelligence community. But, 
like the civil suits filed against providers, the outcome of 
this litigation is uncertain and will likely involve further 
protracted proceedings.

                      SUITS AGAINST THE GOVERNMENT

    In addition to the lawsuits involving telecommunications 
providers, a small number of lawsuits were filed directly 
against the Government challenging the President's surveillance 
program. These suits allege that the President's program 
violated the Constitution and numerous statutory provisions, 
including the exclusivity provisions of the Foreign 
Intelligence Surveillance Act. These cases are at a variety of 
different stages of district court and appellate review. 
Nothing in this bill is intended to affect these suits against 
the Government or individual Government officials.

              TITLE II OF THE FISA AMENDMENTS ACT OF 2007

    Title II of this bill reflects the Committee's belief that 
there is a strong national interest in addressing the extent to 
which the burden of litigation over the legality of 
surveillance should fall on private parties. Based on a review 
of both current immunity provisions and historical information 
on the President's program, the Committee identified three 
issues relating to the exposure of electronic communication 
service providers to liability that needed to be addressed in 
this bill.
    First, the Committee considered the exposure to liability 
of providers who allegedly participated in the President's 
surveillance program. Second, the Committee considered the 
absence, in current law, of a procedural mechanism that would 
give courts an appropriate role in assessing statutory immunity 
provisions that would otherwise be subject to the state secrets 
privilege. Third, the Committee sought to clarify the role of 
state public utility commissions in regulating electronic 
communication service providers' relationships with the 
intelligence community. The Committee addressed these three 
issues, respectively, in sections 202, 203, and 204 of the 
bill.

                          RETROACTIVE IMMUNITY

    Sections 201 and 202 of the bill provide focused 
retroactive immunity for electronic communication service 
providers that were alleged to have cooperated with the 
intelligence community in implementing the President's 
surveillance program. Only civil lawsuits against electronic 
communication service providers alleged to have assisted the 
Government are covered under the provision. The Committee does 
not intend for this section to apply to, or in any way affect, 
pending or future suits against the Government as to the 
legality of the President's program.
    Section 202 was narrowly drafted to apply only to a 
specific intelligence program. Section 202 therefore provides 
immunity for an intelligence activity involving communications 
that was designed to detect or prevent a terrorist attack, or 
activities in preparation for a terrorist attack, that was 
authorized in the period between September 11, 2001 and January 
17, 2007, and that was described in written requests to the 
electronic communication service provider as authorized by the 
President and determined to be lawful.
    The extension of immunity in section 202 reflects the 
Committee's determination that electronic communication service 
providers acted on a good faith belief that the President's 
program, and their assistance, was lawful. The Committee's 
decision to include liability relief for providers was based in 
significant part on its examination of the written 
communications from U.S. Government officials to certain 
providers. The Committee also considered the testimony of 
relevant participants in the program.
    The details of the President's program are highly 
classified. As with other intelligence matters, the identities 
of persons or entities who provide assistance to the U.S. 
Government are protected as vital sources and methods of 
intelligence. But it reveals no secrets to say--as the Foreign 
Intelligence Surveillance Act, this bill, and Title 18 of the 
U.S. Code all make clear--that electronic surveillance for law 
enforcement and intelligence purposes depends in great part on 
the cooperation of the private companies that operate the 
Nation's telecommunication system.
    It would be inappropriate to disclose the names of the 
electronic communication service providers from which 
assistance was sought, the activities in which the Government 
was engaged or in which providers assisted, or the details 
regarding any such assistance. The Committee can say, however, 
that beginning soon after September 11, 2001, the Executive 
branch provided written requests or directives to U.S. 
electronic communication service providers to obtain their 
assistance with communications intelligence activities that had 
been authorized by the President.
    The Committee has reviewed all of the relevant 
correspondence. The letters were provided to electronic 
communication service providers at regular intervals. All of 
the letters stated that the activities had been authorized by 
the President. All of the letters also stated that the 
activities had been determined to be lawful by the Attorney 
General, except for one letter that covered a period of less 
than sixty days. That letter, which like all the others stated 
that the activities had been authorized by the President, 
stated that the activities had been determined to be lawful by 
the Counsel to the President.
    The historical context of requests or directives for 
assistance was also relevant to the Committee's determination 
that electronic communication service providers acted in good 
faith. The Committee considered both the extraordinary nature 
of the time period following the terrorist attacks of September 
11, 2001, and the fact that the expressed purpose of the 
program was to ``detect and prevent the next terrorist attack'' 
in making its assessment.
    On the basis of the representations in the communications 
to providers, the Committee concluded that the providers, in 
the unique historical circumstances of the aftermath of 
September 11, 2001, had a good faith basis for responding to 
the requests for assistance they received. Section 202 makes no 
assessment about the legality of the President's program. It 
simply recognizes that, in the specific historical 
circumstances here, if the private sector relied on written 
representations that high-level Government officials had 
assessed the program to be legal, they acted in good faith and 
should be entitled to protection from civil suit.
    The requirements of section 202 reflect the Committee's 
determination that cases should only be dismissed when 
providers acted in good faith. Section 202 applies only to 
assistance provided by electronics communication service 
providers pursuant to a ``written request or directive from the 
Attorney General or the head of an element of the intelligence 
community. . . that the program was authorized by the President 
and determined to be lawful.''
    Section 202 also preserves an important role for the 
courts. Although the bill reflects the Committee's 
determination that, if the requirements of section 202 are met, 
the provider acted in good faith, the section allows judicial 
review of whether the Attorney General has abused the 
discretion provided by statute in certifying that a provider 
either furnished no assistance or cooperated with the 
Government under the terms referenced in the section.
    In determining whether to provide retroactive immunity, the 
Committee weighed the incentives such immunity would provide. 
As described above, electronic communication service providers 
play an important role in assisting intelligence officials in 
national security activities. Indeed, the intelligence 
community cannot obtain the intelligence it needs without 
assistance from these companies. Given the scope of the civil 
damages suits, and the current spotlight associated with 
providing any assistance to the intelligence community, the 
Committee was concerned that, without retroactive immunity, the 
private sector might be unwilling to cooperate with lawful 
Government requests in the future without unnecessary court 
involvement and protracted litigation. The possible reduction 
in intelligence that might result from this delay is simply 
unacceptable for the safety of our Nation.
    At the same time, the Committee recognized that providers 
play an essential role in ensuring that the Government complies 
with statutory requirements before collecting information that 
may impact the privacy interests of U.S. citizens. Because the 
Government necessarily seeks access to communications through 
the private sector, providers have the unparalleled ability to 
insist on receiving appropriate statutory documentation before 
agreeing to provide any assistance to the Government.
    The Committee sought to maintain the balance between these 
factors by providing retroactive immunity that is limited in 
scope. The provision of retroactive immunity was intended to 
encourage electronic communication service providers who acted 
in good faith in the particular set of circumstances at issue 
to cooperate with the Government when provided with lawful 
requests in the future. Restricting that immunity to discrete 
past activities avoids disrupting the balance of incentives for 
electronic communication service providers to require 
compliance with statutory requirements in the future. Under 
this bill and existing statutory provisions, providers will 
only be entitled to protection from suit for their future 
activities if they ensure that their assistance is conducted in 
accordance with statutory requirements.
    The Committee believes that adherence to precise, existing 
statutory forms is greatly preferred. This preference is 
reflected in section 203 of the bill, which establishes 
procedures by which civil actions against those who assist the 
Government shall be dismissed upon a certification by the 
Attorney General that any assistance had been provided pursuant 
to a court order or a statutorily-prescribed certification or 
directive. The action the Committee proposes for claims arising 
out of the President's program should be understood by the 
Executive branch and providers as a one-time response to an 
unparalleled national experience in the midst of which 
representations were made that assistance to the Government was 
authorized and lawful.

             PROCEDURES FOR IMPLEMENTING STATUTORY DEFENSES

    Section 203 of this bill provides a procedure that can be 
used in the future to seek dismissal of a suit when a defendant 
either provided assistance pursuant to a lawful statutory 
requirement, or did not provide assistance. This section, a new 
section 802 of FISA, reflects the Committee's recognition that 
the identities of persons or entities who provide assistance to 
the intelligence community are properly protected as sources 
and methods of intelligence.
    Under the existing statutory scheme, wire or electronic 
communication providers are authorized to provide information 
and assistance to persons with authority to conduct electronic 
surveillance if the providers have been provided with (1) a 
court order directing the assistance, or (2) a certification in 
writing signed by the Attorney General or certain other 
officers that ``no warrant or court order is required by law, 
that all statutory requirements have been met, and that the 
specific assistance is required.'' See 18 U.S.C. 
Sec. 2511(2)(a)(ii). Current law therefore envisions that wire 
and electronic communication service providers will play a 
lawful role in the Government's conduct of electronic 
surveillance.
    Section 2511(2)(a)(ii) protects these providers from suit 
as long as their actions are consistent with statutory 
authorizations. Once electronic communication service providers 
have a court order or certification, ``no cause of action shall 
lie in any court against any provider of wire or electronic 
communication service . . . for providing information, 
facilities, or assistance in accordance with the terms of a 
court order, statutory authorization, or certification under 
this chapter.'' Id. The Protect America Act and Title I of this 
bill provide similar protections from suit for providing 
information or assistance in accordance with statutory 
directives. All of these immunity provisions are designed to 
ensure that wire and electronic communication service providers 
assist the Government with electronic surveillance activities 
when necessary, and recognize the good faith of those providers 
who assist the Government in accordance with the statutory 
scheme.
    To the extent that any existing immunity provisions are 
applicable, however, providers have not been able to benefit 
from the provisions in the civil cases that are currently 
pending. Because the Government has claimed the state secrets 
privilege over the question of whether any particular provider 
furnished assistance to the Government, an electronic 
communication service provider who cooperated with the 
Government pursuant to a valid court order or certification 
cannot prove it is entitled to immunity under section 
2511(2)(a)(ii) without disclosing the information deemed 
privileged by the Executive branch. Thus, electronic 
communication providers are prohibited from seeking immunity 
under section 2511(2)(a)(ii) for any assistance they may have 
provided to the intelligence community, with the approval of 
the FISA Court, after January 17, 2007. Providers who did not 
assist the Government are similarly unable to extract 
themselves from ongoing litigation, because the assertion of 
the state secrets privilege makes it impossible for them to 
demonstrate their lack of involvement.
    By addressing the situation in which an entity is 
prohibited from taking advantage of existing immunity 
provisions because of Government restrictions on disclosure of 
the information, Section 203 seeks to ensure that existing 
immunity provisions have their intended effect. The Committee 
also intends to reassure providers that as long as their 
assistance to the Government is conducted in accordance with 
statutory requirements, they will be protected from civil 
liability and the burden of further litigation.
    The procedure in section 203 allows a court to review a 
certification as to whether an individual either assisted the 
Government pursuant to a lawful statutory requirement or did 
not assist the Government, even when public disclosure of such 
facts would harm the national security. Because an assertion of 
state secrets over the same facts would likely prevent all 
judicial review over whether, and under what authorities, an 
individual assisted the Government, this provision serves to 
expand judicial review to an area that may have been previously 
non-justiciable. In addition, the statute explicitly allows the 
court to review for abuse of discretion the Attorney General's 
certification that a person either did not assist the 
Government or cooperated with the Government pursuant to 
statutory requirements.

                               PREEMPTION

    Section 204 of the bill preempts state investigations or 
required disclosure of information about the relationship 
between individual electronic communication service providers 
and the intelligence community. The provision reflects the 
Committee's view that, although states play an important role 
in regulating electronic communication service providers, they 
should not be involved in regulating the relationship between 
electronic communication service providers and the intelligence 
community.

              Section-by-Section Analysis and Explanation


                      OVERALL ORGANIZATION OF BILL

    The FISA Amendments Act of 2007 contains three titles.
    Title I includes, in section 101, a new Title VII of FISA 
entitled ``Additional Procedures for Targeting Communications 
of Certain Persons Outside the United States.'' This new title 
of FISA (which will sunset in six years) is a successor to the 
Protect America Act with amendments. Sections 102 through 109 
contain a number of amendments to FISA apart from the 
collection issues addressed in the new Title VII of FISA. These 
include a provision reaffirming that FISA is the exclusive 
means for electronic surveillance and important streamlining 
provisions.
    Title II addresses, in accordance with its title, 
``Protections for Electronic Communication Service Providers.'' 
Section 202 establishes a procedure with precise boundaries for 
liability relief for electronic communication service providers 
in civil cases involving an intelligence activity authorized by 
the President between September 11, 2001, and January 17, 2007.
    Title II also includes, in sections 203 and 204, a new 
Title VIII of FISA entitled ``Protection of Persons Assisting 
the Government.'' This new title establishes long-term 
procedures for two matters. One, in section 203, is the manner 
in which the Government may implement statutory defenses and 
obtain the dismissal of civil cases against persons, 
principally electronic communication service providers, who 
assist elements of the intelligence community in accordance 
with defined legal documents, namely, orders of the FISA Court 
or certifications or directives provided for and defined by 
statute. The other, in section 204, provides for the 
protection, by way of preemption, of the federal government's 
ability to conduct intelligence activities without interference 
by state investigations.
    Title III contains important transition procedures for the 
transition from the Protect America Act to the new Title VII of 
FISA, as well as authority for the Government to continue to 
apply to the FISA Court for orders under Title I of FISA in 
accordance with the law as it stood, in the main, before the 
Protect America Act. It also contains provisions on the 
continuation of authorizations, directives, and orders under 
Title VII that are in effect at the time of the December 21, 
2013 sunset, until their expiration within the year following 
the sunset.

               TITLE I. FOREIGN INTELLIGENCE SURVEILLANCE


Section 101. Targeting the communications of persons outside the United 
        States

    Section 101(a) of this bill establishes a new Title VII of 
FISA. Entitled ``Additional Procedures for Targeting 
Communications of Certain Persons Outside the United States,'' 
the new title includes, with important modifications, the 
authority that had been enacted by the Protect America Act as 
sections 105A, 105B, and 105C of FISA. Those Protect America 
Act provisions, which will be repealed by section 302(b)(1) of 
this bill (or expire on February 1, 2008 in accordance with 
that Act's 180-day sunset), had been placed within FISA's Title 
I on electronic surveillance. Moving the amended authority to a 
title of its own is appropriate because the authority involves 
not only the acquisition of communications as they are being 
carried, the province of Title I, but also while they are 
stored by electronic communication service providers, a form of 
acquisition akin to physical searches under Title III.
            Section 701. Limitation on definition of electronic 
                    surveillance
    Section 701, as added by Title I of this bill, limits the 
definition of the term ``electronic surveillance,'' as that 
term is defined in Title I of FISA. Two sections added by this 
bill--section 704 in Title VII on the use of information 
obtained under Title VII and section 112 in Title I on FISA as 
the exclusive means for electronic surveillance--negate that 
limitation for the matters covered by those sections.
    The origin of section 701 is section 105A, as added for six 
months to FISA by the Protect America Act. Described in its 
heading as a ``clarification'' applicable to the electronic 
surveillance of persons outside the United States, section 105A 
provides that ``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.''
    Section 701 substitutes the phrase ``limitation on 
definition'' for the term ``clarification'' in order to 
characterize the provision more accurately.
    Section 701 modifies section 105A by explicitly providing 
that the limitation on the definition of electronic 
surveillance applies to surveillance that is ``targeted in 
accordance with this title.'' In other words, the limitation on 
the Title I definition of electronic surveillance is no broader 
than the authority under Title VII for electronic surveillance 
targeted at persons reasonably believed to be outside the 
United States.
            Section 702. Definitions
    Section 702 incorporates into Title VII the definition of 
ten terms that are defined in Title I of FISA and used in Title 
VII: ``agent of a foreign power,'' ``Attorney General,'' 
``contents,'' ``electronic surveillance,'' ``foreign 
intelligence information,'' ``foreign power,'' ``minimization 
procedures,'' ``United States,'' ``United States person,'' and 
``person.'' It defines the two courts established in Title I 
that are assigned responsibilities under Title VII: The Foreign 
Intelligence Surveillance Court and the Foreign Intelligence 
Surveillance Court of Review. It also defines ``element of the 
intelligence community'' as found in the National Security Act 
of 1947. Finally, it also defines a term, not previously 
defined in FISA, that has an important role in setting the 
parameters of Title VII: ``electronic communication service 
provider.''
            Section 703. Procedures for acquiring the communications of 
                    certain persons outside the United States
    Subsection 703(a) sets forth the basic authorization in 
Title VII, replacing section 105B of the Protect America Act. 
As had been provided by section 105B, the collection authority 
in subsection 703(a) is vested in the Attorney General and the 
Director of National Intelligence, acting jointly, whose 
authorization shall be for a period of up to one year.
    Section 105B and subsection 703(a) differ in an important 
respect. Section 105B authorized the acquisition of foreign 
intelligence information ``concerning'' persons reasonably 
believed to be outside the United States. To make clear that 
all collection under Title VII must be targeted at persons who 
are reasonably believed to be outside the United States, 
subsection 703(a) eliminates the word ``concerning'' and 
instead authorizes ``the targeting of persons reasonably 
believed to be located outside the United States to collect 
foreign intelligence information.''
    Subsection 703(b) establishes three related limitations on 
the authorization in subsection 703(a). One is a specific 
prohibition on using this authority to target intentionally any 
person within the United States. The second is that the 
authority may not be used to conduct ``reverse targeting,'' the 
intentional targeting of a person reasonably believed to be 
outside the United States if the purpose of the acquisition is 
to target for surveillance a person reasonably believed to be 
in the United States. If that is so, the acquisition must be 
conducted in accordance with Title I of FISA. The third is an 
overarching mandate that the authorization in subsection 703(a) 
shall be used in a manner consistent with the Fourth Amendment 
to the U.S. Constitution, which provides for ``the right of the 
people to be secure in their persons, houses, papers, and 
effects, against unreasonable searches and seizures.''
    Subsection 703(c) addresses United States persons located 
outside the United States. Subsection 703(c)(1), under the 
heading of ``Acquisition Inside the United States of United 
States Persons Outside the United States,'' provides that an 
acquisition authorized under subsection 703(a) that occurs 
inside the United States may not target a United States person 
except in accordance with Title I of FISA.
    Subsection 703(c)(2), under the heading of ``Acquisition 
Outside the United States of United States Persons Outside the 
United States,'' provides that a U.S. person who is reasonably 
believed to be outside the United States may not be 
intentionally targeted if a warrant would be required if the 
surveillance technique were used in the United States, unless 
the procedures of the subsection are followed. There are two 
principal requirements. First, the Attorney General must submit 
to the FISA Court an application with facts showing there is 
probable cause that the target is a foreign power or an agent 
of one, and the court must determine that there is probable 
cause. Second, the Attorney General must submit to the FISA 
Court procedures for determining whether a person outside the 
United States is a U.S. person, the court must approve those 
procedures, and the procedures must be used.
    Subsection 703(d) provides that acquisitions authorized 
under subsection 703(a) may only be conducted pursuant to a 
certification of the Attorney General and DNI and in accordance 
with targeting and minimization procedures that are then 
subject to judicial review.
    Subsection 703(e) provides, in a manner essentially 
identical to the Protect America Act, for the establishment by 
the Attorney General, in consultation with the Director of 
National Intelligence, of targeting procedures that are 
reasonably designed to ensure that collection is limited to the 
communications of persons reasonably believed to be outside the 
United States. As provided in the Protect America Act, the 
targeting procedures are subject to judicial review.
    Subsection 703(f) provides that the Attorney General, in 
consultation with the Director of National Intelligence shall 
establish, for acquisitions authorized by subsection 703(a), 
minimization procedures that are consistent with section 
101(h). Section 101(h) is the provision that establishes FISA's 
minimization requirements for electronic surveillance and 
physical searches. Subsection 703(f)(2) provides that the 
minimization procedures, which are essential to the protection 
of United States citizens and permanent residents, shall be 
subject to judicial review. This corrects an omission in the 
Protect America Act which had not provided for judicial review 
of the adherence of minimization procedures to statutory 
requirements.
    Subsection 703(g) sets forth the elements that must be 
included in the certification of the Attorney General and the 
DNI, which include that the targeting and minimization 
procedures have been approved by the FISA Court or will 
promptly be submitted to it and that the procedures are 
consistent with the Fourth Amendment, that a significant 
purpose of the acquisition is to obtain foreign intelligence 
information, and that the acquisition involves obtaining that 
information from or with the assistance of an electronic 
communication service provider. As with the Protect America 
Act, the certification is not required to identify the specific 
facilities, places, premises, or property at which the 
acquisition under subsection 703(a) will be directed or 
conducted. The certification shall be submitted to the FISA 
Court as soon as possible but no later than five days after it 
is made and be subject to judicial review. The Committee 
believes that, given that the certification has already been 
prepared, it should be given promptly to the court.
    Subsection 703(h) authorizes the Attorney General and the 
DNI to direct, in writing with respect to an authorization 
under subsection 703(a), an electronic communication service 
provider to provide the Government with all information, 
facilities, or assistance necessary to accomplish the 
acquisition. It requires compensation for this assistance and 
provides that no cause of action shall lie in any court against 
an electronic communication service provider for its assistance 
in accordance with a directive. Subsection 703(h) also 
establishes procedures in the FISA Court for a provider to 
challenge the legality of a directive or the Government to 
enforce it. In either case, the question for the court is 
whether the directive meets the requirements of section 703 and 
is otherwise lawful.
    Subsection 703(i) provides for judicial review of any 
certification required by subsection 703(d) and the targeting 
and minimization procedures adopted pursuant to subsections 
703(e) and (f). The court shall review certifications to 
determine whether they contain all the required elements. It 
shall review targeting procedures to assess whether they are 
reasonably designed to ensure that the acquisition activity is 
limited to the targeting of persons reasonably believed to be 
located outside the United States. The Protect America Act had 
limited the review of targeting procedures to a ``clearly 
erroneous'' standard; subsection 703(i) omits that limitation. 
With respect to minimization procedures, subsection 703(i) 
provides that the court shall review them to assess whether 
they meet the statutory requirement.
    If the FISA Court finds that the certification contains all 
the required elements and that the targeting and minimization 
procedures are consistent with the requirements of subsections 
703(e) and (f) and with the Fourth Amendment, the court shall 
enter an order approving their continued use for the 
acquisition authorized by subsection 703(a). If the court does 
not so find, it shall order the Government, at its election, to 
correct any deficiencies or cease the acquisition. Acquisitions 
shall continue during the pendency of any rehearing en banc or 
appeal to the Foreign Intelligence Surveillance Court of 
Review.
    Subsection 703(j) provides that judicial proceedings under 
section 703 shall be conducted as expeditiously as possible.
    Subsection 703(k) requires that records of proceedings 
under section 703 shall be maintained under security measures 
adopted by the Chief Justice in consultation with the Attorney 
General and the DNI, for the filing of petitions under seal and 
for review by the FISA Court ex parte and in camera of any 
Government submission or portions of one that may include 
classified information, and for retention of directives or 
orders for not less than 10 years.
    Subsection 703(l) provides for oversight of the 
implementation of Title VII. It has four parts. First, the 
Attorney General and the DNI shall assess semiannually under 
subsection 703(l)(1) compliance with the targeting and 
minimization procedures and submit the assessment to the FISA 
Court and the congressional intelligence committees. Second, 
under subsection 703(l)(2), the Inspectors General of the 
Department of Justice and of any intelligence community element 
authorized to acquire foreign intelligence under subsection 
703(a) are authorized to review compliance of their agency or 
element with the targeting and minimization procedures. 
Subsection 703(l)(2)(B) and (C) mandate several numbers that 
the Inspectors General shall review with respect to United 
States persons. Their reports shall be submitted to the 
Attorney General, the DNI, and the intelligence committees. 
Third, under subsection 703(l)(3), the head of an intelligence 
community element that conducts a subsection 703(a) acquisition 
shall review annually whether there is reason to believe that 
foreign intelligence information has been or will be obtained 
from the acquisition. The annual review is to be submitted to 
the FISA Court and to the Intelligence Committees. Finally, 
under subsection 703(l)(4), the Attorney General is to ``fully 
inform'' the congressional Intelligence and Judiciary 
Committees about implementation of the Act at least 
semiannually.
            Section 704. Use of information acquired under Section 703
    Section 704 fills a void that has existed under the Protect 
America Act which had contained no provision governing the use 
of acquired intelligence. Section 704 provides that information 
acquired from an acquisition conducted under section 703 shall 
be deemed to be information acquired from an electronic 
surveillance pursuant to Title I for the purposes of section 
106, which is the provision of Title I that governs public 
disclosure or use in criminal proceedings. The one exception is 
for subsection (j) of section 106, as the notice provision in 
that subsection, while manageable in individual Title I 
proceedings, would present a difficult national security 
question when applied to a Title VII acquisition.

Section 101(b). Table of contents

    Section 101(b) of the bill amends the table of contents in 
the first section of FISA.

Subsection 101(c). Sunset

    Section 101(c) of the bill establishes the sunset of the 
new Title VII of FISA on December 31, 2013.

Section 102. Exclusive means

    Section 102 amends Title I of FISA by adding a new Section 
112. Under the heading of ``Statement of Exclusive Means,'' the 
new section states: ``Chapters 119 and 121 of Title 18, United 
States Code, and this Act shall be the exclusive means by which 
electronic surveillance (as defined in section 101(f), 
regardless of the limitation of section 701) and the 
interception of domestic wire, oral, or electronic 
communication may be conducted.'' It is based on a provision 
which Congress enacted in 1978 as part of the original FISA 
that is codified in section 2511(2)(f) of Title 18, United 
States Code.
    Section 112 modifies the Title 18 language in one important 
respect. To preserve the full application of the exclusive 
means requirement to ``electronic surveillance'' as defined 
from FISA's enactment until the ``clarification'' of the 
Protect America Act and the related ``limitation'' that will be 
added by this bill, Section 112 provides that the exclusive 
means requirement applies ``regardless of the limitation of 
section 701.''
    In agreeing to include this exclusive means provision in 
their joint mark, the Chairman and Vice Chairman also agreed 
that the Committee, in this report, should adopt the 
explanation of the exclusive means requirement that the 
Conference Committee included in its 1978 report on FISA, H.R. 
Conf. Rep. No. 95-1720, at 35 (1978). The 1978 conferees noted 
that the Senate had proposed that FISA be the exclusive means 
for conducting electronic surveillance, but that the House had 
countered with an amendment that FISA should be the exclusive 
``statutory means'' of conducting electronic surveillance 
within the meaning of FISA. The 1978 conference substitute 
adopted the Senate provision which omitted the word 
``statutory,'' as does the present bill.
    The 1978 conference report addressed the constitutional 
implications of the legislation that it was reporting:

          The conferees agree that the establishment by this 
        act of exclusive means by which the President may 
        conduct electronic surveillance does not foreclose a 
        different decision by the Supreme Court. The intent of 
        the conferees is to apply the standard set forth in 
        Justice Jackson's concurring opinion in the Steel 
        Seizure Case: ``When a President takes measures 
        incompatible with the express or implied will of 
        Congress, his power is at the lowest ebb, for then he 
        can rely only upon his own Constitutional power minus 
        any Constitutional power of Congress over the matter.'' 
        Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 
        637 (1952).

The intent of this Committee is the same. While the exclusive 
means test in Section 112 does not foreclose the Supreme Court 
from reaching a different decision, the intent of Section 112 
is to place any power of the President to disregard it ``at the 
lowest ebb.''

Section 103. Significant interpretations of FISA

    Section 6002 of the Intelligence Reform Act and Terrorism 
Prevention Act of 2004 (Pub. L. 108-458), added a Title VI to 
FISA that augments the semiannual reporting obligations of the 
Attorney General to the House and Senate Intelligence and 
Judiciary Committees. Under it, the Attorney General shall 
report a summary of significant legal interpretations of FISA 
in matters before the Foreign Intelligence Surveillance Court 
or Court of Review. The requirement extends to interpretations 
presented in applications or pleadings filed with either court 
by the Department of Justice. In addition to the semiannual 
summary, the Department of Justice is required to provide 
copies of court decisions, but not orders, that include 
significant interpretations of FISA. The importance of the 
reporting requirement is that, because the two courts conduct 
their business in secret, Congress needs the reports to know 
how the law it has enacted is being interpreted.
    Section 103 improves the Title VI reporting requirements in 
two ways. First, as significant legal interpretations may be 
included in orders as well as opinions, Section 103 requires 
that orders also be provided to the committees. Second, as the 
semiannual report often takes many months after the end of the 
semiannual period to prepare, Section 103 accelerates provision 
of information about significant legal interpretations by 
requiring the submission of such decisions, orders, or opinions 
within 45 days.

    OVERVIEW OF SECTIONS 104 THROUGH SECTION 108. FISA STREAMLINING

    Sections 104 through 108 amend various sections of FISA for 
such purposes as reducing a paperwork requirement, modifying 
time requirements, or providing additional flexibility in terms 
of the range of Government officials who authorize FISA 
actions. Collectively, these amendments are described as 
streamlining amendments. In general, they are intended to 
increase the efficiency of the FISA process without depriving 
the Foreign Intelligence Surveillance Court of the information 
it needs to make findings required under FISA.

Section 104. Applications for court orders under Section 104 of FISA

    Section 104 of the bill strikes two of the eleven 
paragraphs on standard information in an application for a 
surveillance order under section 104 of FISA, either because 
the information is provided elsewhere in the application 
process or is not needed.
    In various places, FISA has required the submission of 
``detailed'' information, as in section 104 of FISA, ``a 
detailed description of the nature of the information sought 
and the type of communications or activities to be subjected to 
the surveillance.'' The Director of National Intelligence's 
legislative proposal asked that ``summary'' be substituted for 
``detailed'' for this and other application requirements, in 
order to reduce the length of FISA applications. In general, 
the Committee's bill approaches this by eliminating the mandate 
for ``detailed'' descriptions, leaving it to the FISA Court and 
the Government to work out the level of specificity needed by 
the Court to perform its statutory responsibilities. With 
respect to one item of information, ``a statement of the means 
by which the surveillance will be effected,'' the bill modifies 
the requirement by allowing for ``a summary statement.''
    In aid of flexibility, Section 104 increases the number of 
individuals who may make FISA applications by allowing the 
President to designate the Deputy Director of the Federal 
Bureau of Investigation (FBI) as one of those individuals. This 
should enable the Government to move more expeditiously to 
obtain certifications when the Director of the FBI is away from 
Washington or otherwise unavailable.
    Subsection (b) of section 104 is eliminated as obsolete in 
light of current applications. The Director of the Central 
Intelligence Agency is added to the list of officials who may 
make a written request to the Attorney General to personally 
review a FISA application as the head of the CIA had this 
authority prior to the establishment of the Office of the 
Director of National Intelligence.

Section 105. Issuance of orders under Section 105 of FISA

    Section 105 strikes from Section 105 of FISA several 
unnecessary or obsolete provisions. Section 105 strikes 
subsection (c)(1)(F) of Section 105 of FISA which requires 
minimization procedures applicable to each surveillance device 
employed because Section 105(c)(2)(A) requires each order 
approving electronic surveillance to direct the minimization 
procedures to be followed.
    Subsection 6 reorganizes, in more readable form, the 
emergency surveillance provision of Section 105(f), now 
redesignated Section 105(e), with a substantive change of 
extending from 3 to 7 days the time by which the Attorney 
General must obtain a court order after authorizing an 
emergency surveillance. The purpose of the change is to help 
make emergency authority a more practical tool while keeping it 
within the parameters of FISA.
    Subsection 7 adds a new paragraph to Section 105 of FISA to 
require the FISA Court, on the Government's request, when 
granting an application for electronic surveillance, to 
authorize at the same time the installation and use of pen 
registers and trap and trace devices. This will save the 
paperwork that had been involved in making two applications.

Section 106. Use of information under Section 106 of FISA

    Section 106 amends subsection 106(i) of FISA with regard to 
the limitations on the use of unintentionally acquired 
information. Currently, subsection 106(i) provides that 
unintentionally acquired radio communication between persons 
located in the United States must be destroyed unless the 
Attorney General determines that the contents of the 
communications indicates a threat of death or serious bodily 
harm to any person. Section 106 amends subsection 106(i) by 
making it technology neutral on the principle that the same 
rule for the use of information indicating threats of death or 
serious harm should apply no matter how the communication is 
transmitted.

Section 107. Amendments for physical searches

    Section 107 makes changes to Title III of FISA: changing 
applications and orders for physical searches to correspond to 
changes in Sections 104 and 105 on reduction of some 
application paperwork; providing the FBI with administrative 
flexibility in enabling its Deputy Director to be a certifying 
officer; and extending the time, from 3 days to 7 days, for 
obtaining a court order after authorization of an emergency 
search.
    Subsection 303(a)(4)(C)--which will be redesignated 
subsection 303(a)(3)(C)--requires that each application for 
physical search authority state the applicant's belief that the 
property is ``owned, used, possessed by, or is in transmit to 
or from'' a foreign power or agent of one. In order to provide 
needed flexibility and to make the provision consistent with 
electronic surveillance provisions, subsection 107(a)(1)(D) of 
the bill now being reported allows the FBI to apply for 
authority to search property that also is ``about to be'' 
owned, used, or possessed by a foreign power or agent of one, 
or in transit to or from one.

Section 108. Amendments for emergency pen registers and trap and trace 
        devices

    Section 108 amends Section 403 of FISA to extend from 2 
days to 7 days the time for obtaining a court order after an 
emergency installation of a pen register or trap and trace 
device. This change harmonizes among FISA's provisions for 
electronic surveillance, search, and pen register/trap and 
trace authority the time requirements that follow the Attorney 
General's decision to take emergency action.

Section 109. Foreign Intelligence Surveillance Court

    Section 109 contains three amendments to Section 103 of 
FISA, which establishes the FISA Court and the Foreign 
Intelligence Surveillance Court of Review.
    Subsection 109(a) amends Section 103 to provide that judges 
on the FISA Court shall be drawn from ``at least seven'' of the 
United States judicial circuits. The current requirement--that 
the eleven judges be drawn from seven judicial circuits (with 
the number appearing to be a ceiling rather than a floor)--has 
proven unnecessarily restrictive or complicated for the 
designation of the judges to the FISA Court.
    Subsection 109(b) amends Section 103 to allow the FISA 
Court to hold a hearing or rehearing of a matter en banc, that 
is by all the judges who constitute the FISA Court sitting 
together. The court may determine to do this on its own 
initiative, at the request of the Government in any proceeding 
under FISA, or at the request of a party in the few proceedings 
in which a private entity or person may be a party, i.e., 
challenges to document production orders under Title V, or 
proceedings on the legality or enforcement of directives to 
electronic communication service providers under Title VII.
    Under the section 109(b) amendment, en banc review may be 
ordered by a majority of the judges who constitute the FISA 
Court upon a determination that it is necessary to secure or 
maintain uniformity of the court's decisions or that a 
particular proceeding involves a question of exceptional 
importance. It is the intent of the Committee that en banc 
proceedings should be rare and in the interest of the general 
objective of fostering expeditious consideration of matters 
before the FISA Court.
    Subsection 109(c) provides authority for the entry of 
stays, or the entry of orders modifying orders entered by the 
FISA Court or the Court of Review, pending appeal or review in 
the Supreme Court. This authority is supplemental to, and does 
not supersede, the specific provision in section 703(i)(6)(B) 
that acquisitions under Title VII may continue during the 
pendency of any rehearing en banc and appeal to the Court of 
Review.

Section 110. Technical and conforming amendments

    This section conforms several provisions of Section 103(e) 
of FISA in light of the repeal of the Protect America Act and 
the enactment on the new Title VII.

  TITLE II. PROTECTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS

    This title contains four substantive sections. Sections 201 
and 202 address liability relief for electronic communication 
service providers who have been alleged in various civil 
actions to have assisted the U.S. Government between September 
11, 2001, and January 17, 2007, when the Attorney General 
announced the termination of the Terrorist Surveillance 
Program. Relating as they do to a particular past matter, these 
sections are not made a permanent part of FISA. Sections 203 
and 204 will enact provisions of a new Title VIII of FISA. They 
are intended to be permanent provisions for implementing 
statutory defenses for electronic communication service 
providers and others who assist the Government in accordance 
with precise, existing legal requirements, and for providing 
for federal preemption of state investigations.

Section 201. Definitions

    Section 201 establishes definitions for Section 202. 
Several are of particular importance.
    The term ``assistance'' is defined to mean the provision 
of, or the provision of access to, information, facilities, or 
another form of assistance. The word ``information'' is itself 
described in a parenthetical to include communication contents, 
communication records, or other information relating to a 
customer or communications. ``Contents'' is defined by 
reference to its meaning in Title I of FISA. By that reference, 
it includes any information concerning the identity of the 
parties to a communication or the existence, substance, 
purport, or meaning of it.
    The term ``covered civil action'' has two key elements. It 
is defined as a civil action filed in a federal or state court 
which (1) alleges that an electronic communication service 
provider furnished assistance to an element of the intelligence 
community and (2) seeks monetary or other relief from the 
electronic communication service provider related to the 
provision of the assistance. Both elements must be present for 
the lawsuit to be a covered civil action.

Section 202. Limitations on civil actions for electronic communication 
        service providers

    Section 202 provides that, notwithstanding any other 
provision of law, a covered civil action shall not lie or be 
maintained in a federal or state court and shall promptly be 
dismissed if the Attorney General makes a certification to the 
court that sets forth the elements required by Section 202.
    First, the Attorney General must certify that the 
assistance alleged to have been provided by the electronic 
communication service provider was in connection with an 
intelligence activity involving communications that was (1) 
authorized by the President between September 11, 2001 and 
January 17, 2007 and (2) designed to detect or prevent a 
terrorist attack or preparations for one against the United 
States.
    Second, the Attorney General must also certify that the 
assistance was described in a written request or directive from 
the Attorney General or the head (or deputy to the head) of an 
element of the intelligence community to the electronic 
communication service provider indicating that the activity was 
(1) authorized by the President and (2) determined to be 
lawful.
    Alternatively, the Attorney General may certify that the 
electronic communication service provider did not provide the 
alleged assistance.
    The Attorney General's certification is subject to judicial 
review for abuse of discretion.
    If the Attorney General files a declaration that disclosure 
of a certification would harm national security, the court 
shall review the declaration in camera and ex parte, which 
means with only the Government present. A public order 
following that review shall not disclose whether the 
certification was based on a written request or directive to 
the electronic communication service provider for assistance or 
on the ground that the electronic communication service 
provider furnished no assistance. The purpose of this 
requirement is to protect the classified national security 
information involved in the identification of providers who 
assist the Government.

Section 203. Procedures for implementing statutory defenses

    Section 203 adds two sections of a new Title VIII of FISA.
    Section 801 provides for definitions. One, the definition 
of ``assistance,'' is the same as in Section 201. Another, a 
definition of ``person'' (the universe of those protected by 
Section 802) is necessarily broader than only the definition of 
electronic communication service provider. This is so because 
Title VIII applies to all who may be ordered to provide 
assistance under FISA, such as custodians of records who may be 
directed to produce records by the FISA Court under Title V of 
FISA or landlords who may be required to provide access under 
Title I or III of FISA, not just to electronic communication 
service providers.
    Section 802 establishes procedures for implementing 
statutory defenses. Notwithstanding any other provision of law, 
no civil action may lie or be maintained in a federal or state 
court for assistance to an element of the intelligence 
community, and shall be promptly dismissed, if the Attorney 
General makes a certification to the court. The certification 
must state either that the assistance was not provided or if it 
was furnished, that it was provided pursuant to a specific 
existing statutory requirement. The underlying statutory 
requirements are themselves specifically stated in Section 802: 
an order of the FISA Court directing assistance, a 
certification in writing under sections 2511(2)(a)(ii)(B) or 
2709(b) of Title 18, or directives to electronic communication 
service providers under particular sections of FISA or the 
Protect America Act.
    As under Section 202, the Attorney General's certification 
is subject to judicial review for abuse of discretion. Also, if 
the Attorney General files a declaration that disclosure of a 
certification would harm national security, the court shall 
review it in camera and ex parte. A public order shall not 
disclose whether the certification was based on an order, 
certification, or directive, or on the ground that the 
electronic communication service provider furnished no 
assistance.

Section 204. Preemption of state investigations

    Section 204 adds a Section 803 to the new Title VIII. It 
addresses investigations that a number of state regulatory 
commissions have or might begin to investigate cooperation by 
state regulated carriers with U.S. intelligence agencies. 
Section 803 preempts these state investigations by prohibiting 
them and authorizing the United States to bring suit to enforce 
the prohibition.

Section 205. Technical amendments

    Section 205 amends the table of contents of the first 
section of FISA.

                      TITLE III. OTHER PROVISIONS


Section 301. Severability

    Section 301 provides that if any provision of this Act or 
its application is held invalid, the validity of the remainder 
of the Act and its application to other persons and 
circumstances are unaffected.

Section 302. Effective date; Repeal; Transition procedures

    Subsection 302(a) provides that except as provided in the 
transition procedures, the amendments made by the Act shall 
take effect immediately.
    Subsection 302(b) provides for the repeal of the Protect 
America Act, except (as provided in subsection 303(c)(1) in the 
transition procedures) for the immunity established in that Act 
for the provision of assistance pursuant to a directive under 
that Act.
    Subsection 303(c) establishes five transition procedures in 
addition to the continuation of immunity for assistance 
provided under the Protect America Act.
    Subsection 303(c)(2)(A) continues in effect orders issued 
under FISA or under section 6(b) of the Protect America Act in 
effect on the date of enactment on this new Act, and for their 
reauthorization under the provisions of FISA in effect on the 
day before the Protect America Act, except for the exclusive 
means, reporting, streamlining, and other amendments added by 
sections 102 through 109 of this new Act (which will be deemed 
to be part of FISA for such purposes).
    Subsection 303(c)(2)(B) provides that any order of the FISA 
Court issued under Title VII in effect on December 31, 2013, 
the sunset of Title VII, shall continue in effect until the 
date of the expiration of such order.
    Subsection 303(c)(3)(A) provides that any authorizations or 
directives of the Attorney General and the Director of National 
Intelligence in effect on the date of the enactment of this Act 
issued pursuant to the Protect America Act or any amendment 
made by that Act shall remain in effect until the date of the 
expiration of the authorization or directive, and, except as 
provided by subsection 303(c)(4) of this Act, any acquisition 
pursuant to such authorization or directive shall be deemed not 
to be electronic surveillance as that term is defined in 101(f) 
of FISA, as construed in accordance with section 105A. However, 
subsection 303(c)(4) establishes that information acquired from 
an authorization conducted under the Protect America Act shall 
be deemed to be information acquired from an electronic 
surveillance pursuant to Title I of FISA for purposes of 
section 106 of that Act, except for purposes of subsection (j) 
of such section.
    Subsection 303(c)(3)(B) provides similar treatment for any 
authorizations or directives issued pursuant to this Act in 
effect on December 31, 2013.
    Subsection 303(c)( 5) enables the Government to continue to 
obtain electronic surveillance orders under Title I as it 
existed the day before the Protect America Act (except as 
amended by the exclusive means, reporting, streamlining, and 
other amendments added by sections 102 through 109 of this 
Act). In other words, notwithstanding the amendments made by 
the Protect America Act and this new Act to clarify or limit 
the definition of electronic surveillance and establish a new 
procedure (now to be in Title VII) for targeting persons 
reasonably believed to be outside the United States, the 
Government may continue to use Title I of FISA as if the 
Protect America Act and the enactment of the new Title VII had 
never occurred.

                            Committee Action


                   VOTE TO REPORT THE COMMITTEE BILL

    On October 18, 2007, a quorum for reporting being present, 
the Committee voted to report the bill favorably, by a vote of 
13 ayes and 2 noes. The votes in person or by proxy were as 
follows: Chairman Rockefeller--aye; Senator Feinstein--aye; 
Senator Wyden--no; Senator Bayh--aye; Senator Mikulski--aye; 
Senator Feingold--no; Senator Nelson--aye; Senator Whitehouse--
aye; Vice Chairman Bond--aye; Senator Warner--aye; Senator 
Hagel--aye; Senator Chambliss--aye; Senator Hatch--aye; Senator 
Snowe--aye; Senator Burr--aye.

         VOTES ON AMENDMENTS TO COMMITTEE BILL AND THIS REPORT

    On October 18, 2007, the Committee rejected an amendment 
offered by Mr. Nelson to strike Title II, entitled 
``Protections for Electronic Communications Service 
Providers,'' from the bill, by a vote of 3 ayes and 12 noes. 
The votes on the amendment in person or by proxy were as 
follows: Chairman Rockefeller--no; Senator Feinstein--no; 
Senator Wyden--aye; Senator Bayh--no; Senator Mikulski--no; 
Senator Feingold--aye; Senator Nelson--aye; Senator 
Whitehouse--no; Vice Chairman Bond--no; Senator Warner--no; 
Senator Hagel--no; Senator Chambliss--no; Senator Hatch--no; 
Senator Snowe--no; Senator Burr--no.
    On October 18, 2007, the Committee agreed to an amendment 
offered by Senator Feingold and Senator Wyden to require 
additional oversight activities by the Inspectors General of 
the Department of Justice and the intelligence community and 
the provision of additional information in semi-annual reports 
to the Congress, by a vote of 8 ayes to 7 noes. The votes on 
the amendment in person or by proxy were as follows: Chairman 
Rockefeller--no; Senator Feinstein--aye; Senator Wyden--aye; 
Senator Bayh--aye; Senator Mikulski--no; Senator Feingold--aye; 
Senator Nelson--aye; Senator Whitehouse--aye; Vice Chairman 
Bond--no; Senator Warner--no; Senator Hagel--aye; Senator 
Chambliss--no; Senator Hatch--no; Senator Snowe--aye; Senator 
Burr--no.
    On October 18, 2007, the Committee agreed to an amendment 
offered by Senator Wyden, Senator Feingold and Senator 
Whitehouse to amend the provisions of the bill governing the 
targeting of U.S. persons overseas, by a vote of 9 ayes to 6 
noes. The votes on the amendment in person or by proxy were as 
follows: Chairman Rockefeller--no; Senator Feinstein--aye; 
Senator Wyden--aye; Senator Bayh--aye; Senator Mikulski--aye; 
Senator Feingold--aye; Senator Nelson--aye; Senator 
Whitehouse--aye; Vice Chairman Bond--no; Senator Warner--no; 
Senator Hagel--aye; Senator Chambliss--no; Senator Hatch--no; 
Senator Snowe--aye; Senator Burr--no.
    On October 18, 2007, by unanimous consent, the Committee 
agreed to accept an amendment offered by Senator Feingold 
concerning the submittal to Congress of certain FISA court 
orders, as modified by the text of a similar provision of the 
Intelligence Authorization Act for Fiscal Year 2008 approved by 
the Senate.
    On October 18, 2007, the Committee rejected an amendment 
offered by Senator Feingold on minimization procedures, the 
dissemination of foreign intelligence information, and 
minimization procedures compliance reviews by a vote of 4 ayes 
to 11 noes. The votes on the amendment in person or by proxy 
were as follows: Chairman Rockefeller--no; Senator Feinstein--
aye; Senator Wyden--aye; Senator Bayh--no; Senator Mikulski--
no; Senator Feingold--aye; Senator Nelson--no; Senator 
Whitehouse--aye; Vice Chairman Bond--no; Senator Warner--no; 
Senator Hagel--no; Senator Chambliss--no; Senator Hatch--no; 
Senator Snowe--no; Senator Burr--no.
    On October 18, 2007, the Committee rejected an amendment 
offered by Senator Feingold to change the date applicable to 
the sunset of the bill from December 31, 2013 to December 31, 
2009, by a vote of 3 ayes to 12 noes. The votes on the 
amendment in person or by proxy were as follows: Chairman 
Rockefeller--no; Senator Feinstein--no; Senator Wyden--aye; 
Senator Bayh--no; Senator Mikulski--no; Senator Feingold--aye; 
Senator Nelson--no; Senator Whitehouse--aye; Vice Chairman 
Bond--no; Senator Warner--no; Senator Hagel--no; Senator 
Chambliss--no; Senator Hatch--no; Senator Snowe--no; Senator 
Burr--no.
    On October 18, 2007, the Committee rejected an amendment 
offered by Senator Feingold to limit the use of U.S. 
information obtained through targeting procedures that the FISA 
Court determines are not reasonably designed to target persons 
reasonably believed to be overseas, by a vote of 5 ayes to 10 
noes. The votes on the amendment in person or by proxy were as 
follows: Chairman Rockefeller--no; Senator Feinstein--aye; 
Senator Wyden--aye; Senator Bayh--no; Senator Mikulski--no; 
Senator Feingold--aye; Senator Nelson--no; Senator Whitehouse--
aye; Vice Chairman Bond--no; Senator Warner--no; Senator 
Hagel--aye; Senator Chambliss--no; Senator Hatch--no; Senator 
Snowe--no; Senator Burr--no.

                           Estimate of Costs

    Pursuant to paragraph 11(a)(3) of rule XXVI of the Standing 
Rules of the Senate, the Committee deems it impractical to 
include an estimate of the costs incurred in carrying out the 
provisions of this report due to the classified nature of the 
operations conducted pursuant to this legislation. On October 
26, 2007, the Committee transmitted this bill to the 
Congressional Budget Office and requested it to conduct an 
estimate of the costs incurred in carrying out its provisions, 
to the extent not involving classified matters.

                    Evaluation of Regulatory Impact

    In accordance with paragraph 11(b)(2) of rule XXVI of the 
Standing Rules of the Senate, the Committee deems it 
impractical to evaluate in this report the regulatory impact of 
provisions of this bill due to the classified nature of the 
operations conducted pursuant to this legislation.

                        Changes in Existing Laws

    In the opinion of the Committee, it is necessary to 
dispense with the requirements of paragraph 12 of rule XXVI of 
the Standing Rules of the Senate in order to expedite the 
business of the Senate.

                ADDITIONAL VIEWS OF CHAIRMAN ROCKEFELLER

    President Bush issued a secret order after September 11th, 
2001, authorizing the Intelligence Community to collect without 
a court order phone and email communications going into and out 
of the United States where there were reasonable grounds to 
believe that one party was a member of a terrorist 
organization.
    The expressed purpose of the President's order was to 
collect intelligence that might help identify terrorists and 
disrupt their plots before they could be carried out. The 
President's order, however, also prevented both the judicial 
and legislative branches of government from carrying out 
statutorily required oversight of electronic surveillance 
programs.
    The President had a chance to work with Congress in the 
aftermath of 9/11 to craft a balanced revision to the Foreign 
Intelligence Surveillance Act (FISA) that would have eliminated 
the archaic hurdles of targeting foreign agents that had 
evolved over time while maintaining the essential role the 
judiciary performs in ensuring the constitutional privacy 
rights of Americans are not violated in the process.
    The President squandered the chance at a critical moment in 
our Nation's history to unify our efforts in combating the 
threat of terrorism and instead chose an imperious, go-it-alone 
approach to governance. In doing so, the Bush Administration 
sowed the seeds of the program's eventual demise and created a 
statutory turmoil that Congress is now attempting to resolve.
    The President's decision to circumvent the Foreign 
Intelligence Surveillance Court in carrying out the broad 
electronic surveillance program and to limit knowledge of the 
program's existence to only a handful of congressional 
officials was misguided and undermined the legitimacy and 
effectiveness of the program.
    Ultimately, the Administration was forced to seek and 
obtain in January 2007 court approval for the collection of 
electronic communications previously carried out without an 
order. Efforts by the four congressional oversight committees 
to fully understand the surveillance program's scope, legal 
basis, and operational effectiveness have been continually 
frustrated over many years by an impenetrable cloak of secrecy 
and a Bush Administration mantra that falsely equates 
congressional oversight as anathema to national security.
    Even now, six years after the warrantless surveillance 
program was initiated, the Administration continues to withhold 
from Congress without justification the documents and 
information it needs to have a full accounting of what happened 
under the program. The Administration's unwillingness to 
provide a complete disclosure of these facts is short-sighted 
and untenable.
    Only after the program was disclosed publicly nearly two 
years ago did the Bush Administration reluctantly agree to 
brief the entire membership of the Senate and House 
intelligence committees. At first, the briefings provided were 
not complete or accurate representations of the program's 
historical and contemporaneous scope. Glossed over in these 
delayed briefings as well were the legal concerns within the 
Administration about the program's operations. As this and 
other relevant information was being withheld from the 
Committee, high-ranking officials of the Bush Administration 
were selectively declassifying and releasing information about 
the program and falsely assuring the American people that no 
concerns about the program's legality had been voiced within 
the Administration.
    The Committee will not be dissuaded from completing its 
review of the President's program. In addition, the reluctance 
on the part of the Bush Administration to trust and cooperate 
with Congress unnecessarily alienates those legislators in both 
parties who wish to work to make our laws stronger and our 
intelligence capabilities directed at terrorists more robust.
    Despite the Bush Administration's distrust of Congress and 
its inherent resistance to the concept of accountability, the 
Committee recognized early this year the need to undertake a 
careful and deliberate review of intelligence collection 
authorities embodied in the 1978 FISA law.
    My goal in undertaking this effort was for the Committee to 
produce a bipartisan bill that would strengthen our national 
security, protect the civil liberties and privacy rights of all 
Americans, and ensure that the unchecked wiretapping policies 
of the Bush Administration are a thing of the past. The 
Committee has reported legislation that meets this goal.
    The bill, passed on a 13-2 vote, adds the necessary and 
appropriate court and congressional oversight of surveillance 
activities that is absent in the flawed Protect America Act 
hastily passed and signed into law in August. Furthermore, the 
Committee bill requires that Americans located overseas cannot 
be targeted for surveillance without court approval, a notable 
privacy protection not currently in the law.
    The bill also includes a narrowly-focused liability 
provision that protects telecommunications companies from being 
sued for alleged participation in the surveillance program from 
9/11 until it was placed under FISC authorization in January of 
this year. This immunity provision is not the broad and vague 
immunity sought by the Administration. The bill does not 
provide retrospective immunity for government officials for 
their actions or to companies outside the specified time frame. 
Nor does the bill extend to criminal proceedings.
    The Committee did not endorse the immunity provision 
lightly. It was the informed judgment of the Committee after 
months in which we carefully reviewed the facts in the matter. 
The Committee reached the conclusion that the immunity remedy 
was appropriate in this case after holding numerous hearings 
and briefings on the subject and conducting a thorough 
examination of the letters sent by the U.S. Government to the 
telecommunications companies.
    The Committee determined that telecommunications companies 
are often asked to be partners in law enforcement and national 
security efforts, and that their participation was based on 
what they believed to be lawful directives and representations 
of the President and the Attorney General.
    The assistance of companies is invaluable in carrying out 
programs that provide for our national security and protect 
American lives. It is important that this assistance continue 
and not be extinguished under a deluge of lawsuits.
    I believe it is the Bush Administration, not the companies, 
who must be accountable for the mishandling of the warrantless 
surveillance program. The internal debate within the 
Administration over the program was kept from those who 
participated in the program as well as from the Congress. The 
Committee, especially now that it finally has access to the 
President's authorization orders and Department of Justice 
opinions, will continue its examination of the activities 
authorized by the President and report its findings. Whatever 
the conclusions of the Committee may be, the burden of any 
debate about the conduct of Government officials should not 
fall on the telecommunications providers who responded to 
representations made to them after September 11th that the 
program was legal and that their assistance was required to 
protect American lives.
                                   John D. Rockefeller IV.

    ADDITIONAL VIEWS OF SENATORS BOND, CHAMBLISS, HATCH, AND WARNER

    In 1978, Congress passed and the President signed into law 
the Foreign Intelligence Surveillance Act (FISA). The Act was 
the result of lengthy debates on the need to strike an 
appropriate balance between protecting the civil liberties of 
Americans and using all necessary and appropriate tools to 
defend the national security of the United States.
    FISA served us well for almost thirty years, and, in many 
ways, it continues to do so. Due to changes in technology, 
however, FISA began to inhibit vital foreign intelligence 
collection in ways that Congress never intended. The impact on 
our intelligence agencies and our troops on the battlefield was 
profound. Congress acted to correct this problem through the 
Protect America Act (PAA), which the President signed into law 
in August 2007. The PAA was enacted as a temporary solution to 
a serious legal problem that was causing significant 
intelligence gaps. The PAA is not perfect, but it has done the 
job it was intended to do. Because the PAA expires in February 
2008, it is imperative that Congress pass more permanent 
changes to FISA.
    The FISA Amendments Act is a vitally important piece of 
legislation that makes long-term improvements and restores much 
of the original intent of FISA: maintaining the requirement for 
Foreign Intelligence Surveillance Court (FISC) approval for the 
electronic surveillance of persons within the United States, 
while allowing the acquisition of foreign communications 
without such approval. In addition, the FISA Amendments Act 
adds new privacy protections for American citizens.
    Chairman Rockefeller and I, along with the Director of 
National Intelligence (DNI), the Department of Justice, and the 
members of the Senate Intelligence Committee, worked closely 
together over the past several months to produce this 
responsible, bipartisan legislation. All of the parties 
involved had to make significant compromises, but the result is 
a bill that protects Americans' privacy and civil liberties 
without unnecessarily hindering the ability of our intelligence 
agencies to intercept the communications of terrorists and 
other threats to our national security.
    The Senate Intelligence Committee was in a unique position 
to weigh and assess the many highly classified aspects of our 
foreign intelligence surveillance operations and to discuss and 
debate those sensitive issues before we wrote this legislation. 
The Committee was also entrusted with special access to 
sensitive national security documents related to this 
legislation per the Committee's unique jurisdiction over 
sensitive matters. The resulting Committee bill will work for 
the Intelligence Community, will work for national security, 
and will work to protect Americans' privacy interests.
    The bill allows the Intelligence Community, through a joint 
Attorney General and DNI certification, to target the 
communications of foreign targets outside the U.S. without 
prior court approval. This provides the speed and agility the 
Intelligence Community needs and keeps foreign intelligence 
targets outside of the direct purview of the FISA court, which 
is what Congress intended when it drafted the FISA bill in 
1978. This ensures that foreign collection can continue and 
that the FISA Court is not bogged down with reviewing numerous 
foreign collections outside of its purview.
    The FISA Amendments Act also ensures the protection of 
Americans' civil liberties by providing that acquisition may be 
conducted only in accordance with targeting and minimization 
procedures adopted by the Attorney General and reviewed by the 
FISC. Targeting must be consistent with the Fourth Amendment 
and reverse-targeting of Americans is specifically prohibited. 
There are also several provisions in the bill that enhance 
oversight by Congress, the Attorney General, the DNI, and 
Inspectors General.
    One of the most important provisions in this bill is 
retroactive liability protection for those telecommunication 
carriers alleged to have assisted the government with the 
President's Terrorist Surveillance Program (TSP). We believe, 
without any doubt, that the President properly used his 
authority under Article II of the Constitution to protect this 
country in the wake of the 9/11 terrorist attacks. We believe 
that the TSP was legal, necessary, and most likely prevented 
another terrorist attack against the homeland.
    Those who constantly harp on the misleading assertion that 
the TSP was illegal conveniently ignore the federal case law 
that recognizes the President's Article II authority to engage 
in warrantless surveillance in the context of gathering foreign 
intelligence. Instead, they assert that the TSP violated FISA. 
The last time we checked, the Constitution always trumps any 
statute passed by Congress, including FISA. Even at his lowest 
ebb, the President still possesses significant authority vis-a-
vis Congress in the area of intercepting enemy communications.
    I have reviewed the Department of Justice legal opinions 
and the Presidential authorizations which critics of the TSP 
had declared would hold the smoking gun that the program was 
illegal. I have found no smoking gun, and those of us who have 
seen these documents have found nothing in them that would 
support the conclusion that the government's actions were 
illegal. While others may disagree, there should be no doubt 
that those carriers who are alleged to have participated in the 
program acted legally and believed that what they were doing 
was patriotic and in the best interest of the country. These 
companies deserve to be protected from these costly and 
frivolous lawsuits. Those who ask why the companies need such 
protection if they did nothing illegal are missing the 
fundamental point that the government's invocation of the 
states secrets privilege precludes these companies from 
asserting valid defenses and providing the court with any 
factual evidence confirming or denying their involvement in the 
program. As a result, these companies cannot defend themselves 
even if they never participated in the program.
    Some have suggested that indemnification of these companies 
is a better solution. In reality, this is not a suitable fix 
for the companies, the American taxpayer, or our Intelligence 
Community. First, lawsuits can be extremely costly to a company 
in terms of damage to business reputation and stock prices even 
if that company is ultimately found not liable or if the 
government pays the legal bills. Second, the American taxpayers 
have a large enough tax burden and should not be forced to 
shoulder an additional burden to finance these frivolous 
lawsuits, filed by parties with no standing or actual damages. 
We should not use taxpayer funds to line the pockets of trial 
lawyers seeking to graymail the government into settling these 
lawsuits to avoid the public disclosure of classified 
information. Third, the irresponsible and criminal leaks of the 
TSP and other intelligence programs have been costly to our 
Intelligence Community. Continuing to litigate these cases 
against the carriers will risk unnecessary further disclosure 
of our intelligence sources and methods.
    Our enemies are not stupid. They pay attention to our laws 
and legal proceedings, sometimes better than we do. We have no 
doubt that they have followed each disclosure or leak of 
intelligence information with interest. If a person believes 
that the government has violated his rights, then that 
individual should pursue legal action against the government. 
Anyone who wants to pursue legal claims against the government 
is free to do so under this legislation, but, if we allow these 
companies to suffer for helping us in the war on terror, could 
we really blame a company for not wanting to help the next time 
it is called upon to assist in defending our country?
    Unfortunately, the bill contains one very problematic 
provision, added by amendment, which, if not modified, will 
make it difficult to get our bill out of the Senate and may 
make it impossible to get the support of the President who must 
ultimately sign the bill. This provision prohibits surveillance 
of U.S. persons who are overseas without a court order. Those 
in favor of this amendment argue that we should not be 
conducting surveillance or searches of Americans without a 
court order. The Fourth Amendment, however, does not always 
require a warrant. Rather, warrantless surveillances and 
searches are routinely upheld by courts if they satisfy the 
reasonableness requirement of the Fourth Amendment. Thus, in 
the criminal law context, courts have recognized that no 
warrant is required to conduct a border search, an inventory 
search, consensual monitoring, certain vehicle searches, etc.
    Similarly, under Executive Order 12333, section 2.5, signed 
by President Reagan in 1981, the Attorney General may authorize 
surveillances or searches of U.S. persons inside and outside 
the United States upon a finding of probable cause to believe 
that that person is a foreign power or an agent of a foreign 
power. Section 2.5 authority has worked well and without any 
known abuses. Congress chose in 1978 to leave this authority 
outside of FISA due to the court's lack of jurisdiction 
overseas and other complicating intelligence matters. 
Nevertheless, we support the intent of the amendment: any time 
a U.S. person is the target of surveillance, the government 
should get an appropriate judicial ruling. However, since 
significant technical and legal problems with the provision's 
language have unintended consequences that would cause the 
Intelligence Community to lose valuable intelligence on certain 
U.S. persons who are spying for a foreign power or supporting 
terrorism, we remain hopeful that we will be able to reach a 
compromise on this issue when we get to the floor.
    As this U.S. person surveillance provision is discussed in 
the weeks ahead, I want to make sure that all Americans are 
clear about what individuals would be subject to this 
provision. The Intelligence Community is not targeting American 
businessmen traveling overseas on a trip or students studying 
abroad. It is not targeting ordinary tourists or our soldiers. 
Instead, they are targeting those few individuals on whom the 
Intelligence Community seeks to gather foreign intelligence 
information only after the Attorney General has found probable 
cause that these U.S. persons are foreign powers or agents of a 
foreign power. The men and women of our Intelligence Community 
are honorable people who have taken an oath to protect and 
defend the Constitution of the United States, and they 
understand their legal and operational boundaries. It is 
unfortunate that some are using scare tactics to confuse 
Americans into thinking that they might be monitored by the 
U.S. government when traveling overseas. Unless they are spying 
for a foreign country or supporting terrorism, our government 
has no foreign intelligence interest in them. Frankly, despite 
budget increases since 9/11, our Intelligence Community has 
enough work on its hands tracking terrorists and spies intent 
on harming us without wasting precious time and resources 
surveilling innocent Americans.
                                   Christopher S. Bond.
                                   Saxby Chambliss.
                                   Orrin G. Hatch.
                                   John Warner.

                  ADDITIONAL VIEWS OF SAXBY CHAMBLISS

    When Congress first considered enacting the Foreign 
Intelligence Surveillance Act (FISA) it was after some of the 
most serious intrusions into Americans' lives by the U.S. 
Intelligence Community were exposed by the Congress. Since 
1978, Congress has provided rigorous oversight of our 
Intelligence Community and enacted valuable legislation, such 
as FISA, in order to guide our collectors. Congress, and the 
Intelligence Community, have taken measures to ensure that U.S. 
citizens are protected from unnecessary government intrusions 
into their private lives while at the same time balancing the 
government's need to collect vital intelligence necessary to 
ward off terrorist attacks or the spies of our enemies. The 
post 9/11 environment in which Congress must now consider 
amending FISA is much different from the Cold War era. The 
threat to the homeland is real and our enemies communicate 
through more sophisticated means and in a more security 
conscious manner than in 1978. These evolving threats must be 
considered by Congress during the debate on FISA modernization. 
The FISA Amendments Act of 2007 provides much needed updates to 
FISA, but I am concerned that Congress may not reach this 
delicate balance without further amending the bill.
    The Chairman and Vice Chairman introduced a carefully 
crafted, bi-partisan piece of legislation. Although it was not 
a perfect bill, I was willing to forego offering amendments to 
support the bi-partisan process and provide our Intelligence 
Community with the minimum requirements it needs in an 
environment with rapidly changing technology. I believe that 
the bill which was ultimately adopted by the Committee, and 
with my support, contains troubling language which should be 
altered before enactment. I had filed three amendments prior to 
the Committee's consideration of the FISA Amendments Act of 
2007. Although I did not offer any of them, I believe these 
issues should be addressed by Congress.
    My first amendment would change the definition of 
``electronic surveillance'' to make it target-oriented and 
technology neutral. Rather than carving out an exception to 
``electronic surveillance'' for communications where the target 
is reasonably believed to be overseas, I believe it would be 
prudent for the Committee to craft a new definition which 
focuses on the core question of who is the subject of the 
surveillance rather than on how or where the communication is 
intercepted.
    When FISA was enacted in 1978, Congress used language that 
was technology-dependent and related specifically to the 
telecommunications systems that existed at that time (such as 
``wire and radio communications''). As a result of revolutions 
in communications technology since 1978, and not any considered 
judgment of Congress, the current definition of ``electronic 
surveillance'' sweeps in surveillance activities that Congress 
intended to exclude from FISA's scope. For example, in 1978, 
most foreign communications went through the air rather than 
over a wire and most domestic communications were on a wire. 
Today, most domestic communications, such as cell phone 
communications, travel through the air and most international 
communications travel over a wire. The FISA Amendments Act of 
2007 seeks to fix this major problem identified by the Director 
of National Intelligence as a result from this outdated 
definition, but does so by excluding, or carving out, foreign 
to foreign communications from the definition of ``electronic 
surveillance'' rather than fixing the underlying problem. 
Although the problem of foreign targeting may be fixed, it is 
difficult to foresee what additional problems the current 
technology-based definition may cause in the future. I believe 
that amending the definition of ``electronic surveillance'' is 
the best and most comprehensive solution.
    My second amendment would have been a minor technical 
change deleting the definition of ``wire communication.'' If 
the definition of ``electronic surveillance'' is changed, there 
would no longer be a need to have a definition for ``wire 
communication'' since the statute would be technology neutral.
    My final amendment sought to strike a provision in the FISA 
Amendments Act which would require the Foreign Intelligence 
Surveillance Court (FISC) to review the Attorney General's 
probable cause determination when the target of surveillance is 
a known U.S. person overseas and there is probable cause to 
determine that the individual is a foreign power, agent of a 
foreign power, or an officer or employee of a foreign power. 
Instead, Senator Wyden introduced, and the Committee adopted, 
an amendment requiring that any time a U.S. person is the 
target of surveillance, regardless of where the collection 
occurs, the Attorney General must seek FISC approval for that 
collection.
    I am concerned that Senator Wyden's amendment is an attempt 
by Congress to micromanage the Intelligence Community. 
Currently, under Executive Order 12333, Section 2.5, the 
Attorney General may authorize the targeting of a U.S. person 
overseas upon finding probable cause to believe that the 
individual is a foreign power or agent of a foreign power. 
Senator Wyden's amendment seeks to prevent the Intelligence 
Community from acting quickly and with discretion in a process 
which has worked well to protect U.S. persons for almost thirty 
years. The Intelligence Community will now be required to 
obtain authorization from the FISC prior to conducting 
surveillance against terrorists or spies overseas who assist 
foreign governments merely because they are United States 
persons. It is my belief that the Intelligence Community has 
demonstrated to Congress how judicious, selective and careful 
they have been when it comes to protecting the very small 
number of U.S. citizens this applies to and does not 
necessarily need the FISC to approve their actions every step 
along the way.
    The Congress considered legislative proposals throughout 
two Congresses prior to enacting FISA in 1978 and explicitly 
did not address the issue of U.S. persons overseas because they 
felt it demanded further consideration. I am concerned that 
Congress is acting hastily on this subject and moving away from 
the original intent of FISA. Allowing FISC judges to review the 
President's constitutional powers to conduct foreign policy and 
defend the nation is a gross expansion of judicial power from 
the 1978 FISA law, which was intended to apply solely to 
domestic surveillance of U.S. persons. Instead of granting 
oversight of the Executive Branch to judges, Congress should 
exercise due diligence and reconsider these points after 
careful examination of the current authorities governing 
surveillance of U.S. persons overseas. Judges are not elected 
officials held accountable to the American people like the 
President and the Congress and it should not be within their 
jurisdiction to provide after the fact approval or disapproval 
to the procedures the Executive believes are necessary for our 
national security.
    Finally, I am pleased to see the Committee take responsible 
action by providing our telecommunications carriers with 
liability relief. The FISA Amendments Act of 2007 provides that 
no civil actions may be brought against electronic 
communication providers if the Attorney General certifies: (1) 
the assistance alleged was in connection with a communication 
intelligence activity that was authorized by the President 
between September 11, 2001 and January 17, 2007, designed to 
detect or prevent a terrorist attack against the U.S. and 
described in writing to the provider that it was authorized by 
the President and lawful; or (2) the communication provider did 
not provide any of the alleged assistance. It also removes any 
claims from state courts to the Federal court and preempts any 
state from conducting an investigation into an electronic 
communication provider's alleged assistance to the government. 
The government often needs assistance from the private sector 
in order to protect our national security and in return they 
should be able to rely on the government's assurances. 
America's telecommunication carriers should not have to front 
heavy legal battles shrouded in secrecy on the government's 
behalf.
    Overall, I support the efforts of the Chairman and Vice 
Chairman to draft bi-partisan legislation. Whatever form the 
legislation takes before being presented to the President for 
his signature, Congress should seek the Director of National 
Intelligence's comments and advice in order to avoid any 
unintended consequences from well-intentioned amendments. It is 
critical that Congress enact FISA legislation, with the input 
of our core collectors, to ensure that our Intelligence 
Community has the tools and the legal framework necessary to 
protect our country from terrorist attacks and to collect vital 
foreign intelligence information.

                                                   Saxby Chambliss.

        ADDITIONAL VIEWS OF SENATORS FEINSTEIN, SNOWE, AND HAGEL

    Chairman Rockefeller and Vice Chairman Bond are to be 
commended for producing a bipartisan bill that the Director of 
National Intelligence and Department of Justice support. They 
and their staff have worked together to produce this bill. It 
is a signal accomplishment, and we commend them.
    We believe this legislation is a strong bipartisan bill 
that will next be reviewed by the Senate Judiciary Committee. 
We hope that the bill can be further improved, particularly 
with respect to the issue of FISA's exclusivity, as discussed 
below.

                    IMPROVEMENTS IN THIS LEGISLATION

    The Committee's bill makes necessary improvements to 
current law, the Protect America Act that was enacted in 
August.
    Notably, for the first time ever, this legislation would 
require court review any time the Intelligence Community 
targets a U.S. citizen for surveillance, regardless of 
location. Under present law and regulation, the Attorney 
General can approve surveillance of Americans outside of the 
country with no judicial review.
    This legislation puts the central question before the FISA 
Court: whether there is probable cause to believe that a U.S. 
person is an agent of a foreign power. This is a determination 
that FISA Court judges have made in thousands of instances 
since 1978, and one to which it is well suited.
    In addition, this bill:
           Greatly increases the role of the FISA Court 
        in conducting up-front review and approvals of the 
        targeting and minimization of communications;
           Corrects the concern arising from the 
        Protect America Act that surveillance information could 
        be used in an overly broad manner. Instead, this bill 
        uses FISA's existing limitations on use:
                   Disseminated information must be 
                minimized;
                   Information can only be shared only 
                for appropriate intelligence and law 
                enforcement purposes; and
                   Inadvertently collected intelligence 
                must be destroyed;
           ``Streamlines'' the FISA application and 
        order process in order to reduce the pending 
        application backlog and the significant amount of time 
        it takes to write and review an application. 
        Specifically, the bill:
                   Allows the government to present a 
                summary, rather than a full description, of how 
                the surveillance will be effected and what 
                intelligence is sought; and
                   Extends the existing FISA 
                ``emergency period'' from three to seven days 
                during which surveillance may be conducted 
                under the Attorney General's direction prior to 
                a Court order being obtained;
           Provides for strong internal and external 
        oversight by:
                   Requiring the Intelligence Community 
                to conduct an annual review of whether new 
                surveillance authorities are being properly 
                applied;
                   Requiring the Attorney General to 
                provide detailed semi-annual reports to the 
                Senate and House Intelligence and Judiciary 
                committees concerning collections authorized in 
                the bill--including instances of non-
                compliance; and
                   Authorizing the Inspectors General 
                of the Department of Justice and elements of 
                the Intelligence Community to conduct 
                independent reviews of agency compliance with 
                the court-approved acquisition and minimization 
                procedures.
           Clearly prohibits warrantless surveillance 
        against persons inside the United States.
    Legislation amending the Foreign Intelligence Surveillance 
Act of 1978, and the Protect America Act that was passed in 
August of this year, will only succeed if it is bipartisan. In 
this area, it is our belief that any partisan bill will not 
pass.
    That outcome is likely to result in one of two unacceptable 
options:
           A rushed process to extend the Protect 
        America Act, which contains fewer statutory protections 
        of privacy rights than the Committee's bill, or
           A lapse in legislation, which will prevent 
        the Intelligence Community from conducting much-needed 
        surveillance on non-United States citizens outside of 
        the country.
    Clearly, passing meaningful reforms should be a top 
priority of the U.S. Congress.

                          EXCLUSIVITY OF FISA

    The legislation includes language on the exclusivity of 
FISA that requires further examination. Section 102 of the 
Intelligence Committee bill states that the Foreign 
Intelligence Surveillance Act and relevant portions of Title 18 
of the U.S. Code are the ``exclusive means'' by which 
``electronic surveillance'' may be conducted.
    The definition of the term ``electronic surveillance,'' 
however, was written in 1978 and has been the subject of 
exemptions and limitations since then.
    It is essential that the Committee determine whether there 
are any intelligence techniques that fall within this 
legislation's scope for which the Executive Branch may not 
follow the bill's procedures. This is a necessarily classified 
topic, but we intend to conduct careful review of these 
techniques before this legislation is enacted.
    It is our view that the Foreign Intelligence Surveillance 
Act, as amended, should be the only legal way of acquiring the 
communications of people inside the United States, and U.S. 
persons outside the United States in certain circumstances, for 
foreign intelligence purposes.
    There is a history to this provision that makes a strong 
congressional re-affirmation even more important.
    The legislative history from when FISA was originally 
enacted in 1978 is quite clear. It states:

          [d]espite any inherent power of the President to 
        authorize warrantless electronic surveillance in the 
        absence of legislation, by this bill and chapter 119 of 
        title 18, Congress will have legislated with regard to 
        electronic surveillance in the United States, that 
        legislation with its procedures and safeguards prohibit 
        the President, notwithstanding any inherent powers, 
        from violating the terms of that legislation. (emphasis 
        added)

    The legislative history continued by describing the Supreme 
Court's decision in the Keith case, in which the Court ruled 
that at that time, Congress hadn't ruled in this field and 
``simply left the presidential powers where it found them.'' 
But at this point, the legislative history turns. It said:

          The Foreign Intelligence Surveillance Act, however, 
        does not simply leave Presidential powers where it 
        finds them. To the contrary, this bill would substitute 
        a clear legislative authorization pursuant to 
        statutory, not constitutional, standards. (emphasis 
        added)

    This was the statement accompanying H.R. 7138 as it passed 
the 95th Congress. It is clear that Congress enacted the 1978 
legislation with the specific intent that it would be the only 
authority under which foreign intelligence could be obtained 
from electronic surveillance.
    It is also clear that President Carter was aware of this 
intent when he signed the bill into law. President Carter's 
signing statement noted that:

          The bill requires, for the first time, a prior 
        judicial warrant for all electronic surveillance for 
        foreign intelligence or counterintelligence purposes in 
        the United States in which communications of U.S. 
        persons might be intercepted. It clarifies the 
        Executive's authority to gather foreign intelligence by 
        electronic surveillance in the United States. It will 
        remove any doubt about the legality of those 
        surveillances which are conducted to protect our 
        country against espionage and international terrorism . 
        . . . (emphasis in original)

    This intent, and FISA practice for more than 20 years, was 
cast in doubt after September 11, 2001. At that time, the 
Executive Branch concluded that it was not bound by FISA's 
procedures, and proceeded with the Terrorist Surveillance 
Program (TSP) without requesting amendments to FISA.
    As explained in the Department of Justice's 2006 White 
Paper on the legality of the TSP, the Administration cited the 
Authorization for the Use of Military Force (AUMF) against al 
Qaeda and its supporters as an alternative authority. The 
Department pointed to language in FISA that it was exclusive 
except as authorized by other statute.
    Congress intended for the ``other statute'' to be the laws 
governing criminal wiretaps, not a broad and undefined 
exception.
    We do not believe that the AUMF provided this 
authorization. We have seen no evidence that Congress intended 
the AUMF to authorize a widespread effort to collect the 
content of Americans' phone and email communications, nor does 
the AUMF refer to the subject.
    Furthermore, FISA already contained a provision that 
clearly governed surveillance actions in a wartime situation--a 
15-day authorization for warrantless surveillance following a 
declaration of war. So this was not an uncontemplated question 
following September 11 and the passage of the AUMF.
    More troubling, however, is the Administration's claim that 
the Constitution would not allow FISA to limit the President's 
ability to conduct surveillance and other activities covered by 
that legislation in any way he sees fit. The Department of 
Justice argues that Congress has not, and cannot, so limit the 
Executive's power.
    For these reasons, we continue to believe that Congress 
must write strong language to ensure that FISA is the exclusive 
means that the Intelligence Community may intercept, analyze, 
and disseminate the phone and electronic communications of any 
American for intelligence purposes.
    We will work to strengthen the exclusivity language as the 
bill progresses.
    Achieving the balance between necessary intelligence 
collection and the protection of Americans' privacy rights is 
perhaps nowhere as difficult as in the areas surrounding FISA. 
It is not a field in which partisan politics should play a 
part. Nor is it one where the Congress and the President should 
be in conflict.
    We thank again Chairman Rockefeller and Vice Chairman Bond 
for their work on this legislation. It is a big step forward.

                                   Dianne Feinstein.
                                   Olympia J. Snowe.
                                   Chuck Hagel.

                   ADDITIONAL VIEWS OF SENATOR NELSON

    I strongly support the efforts of Chairman Rockefeller and 
Vice-Chairman Bond to craft a compromise that a bipartisan 
majority of the SSCI supported. This bill strikes the right 
balance, protecting Americans' privacy while giving the 
government the tools that it needs to stop terrorists.
    During the committee's mark-up of the bill, I offered an 
amendment that would have struck Title II from the bill. Title 
II provides immunity to any telecommunications company that may 
have provided assistance to the government under the 
President's warrantless surveillance program between September 
11, 2001 and January 17, 2007.
    I am sympathetic to the notion that companies may have 
acted in good faith to provide the government with assistance 
during a national security crisis, but I believe it's premature 
to grant them immunity. The committee received critical 
documents only 48 hours before the vote. I believe we need more 
time to gain a full understanding of the President's 
warrantless surveillance program before deciding whether the 
companies should receive retroactive immunity.
    I voted to support the bill because legislation that 
provides protections for Americans while enabling the 
government to get the information it needs to stop terrorists 
is necessary and immediate.

                                                       Bill Nelson.

                 ADDITIONAL VIEWS OF SENATOR WHITEHOUSE

    With this legislation, the Senate takes an important step 
forward to repair damage the Bush Administration has done to 
the privacy and security of innocent American citizens. The 
President's warrantless wiretapping program provoked dismay and 
outrage not only in my home state of Rhode Island, but 
throughout the nation. This outrage has continued largely 
unabated as the President has delayed and circumscribed efforts 
by the American people's representatives to determine what took 
place under the secret program. This legislation moves the 
Government toward a solution that gives the law enforcement and 
intelligence communities the resources they need to keep us 
secure, but also upholds the critical balance of law and 
principle upon which that security depends.
    I know such a solution exists. I saw it in action during my 
years as a federal and state prosecutor. But rather than seek 
that common-sense solution, this President chose to trample on 
the rights of the very people he was sworn to protect, and left 
millions of Americans wondering whether they can trust their 
government.
    In August, I voted against the Protect America Act, a 
flawed law rushed through Congress under intense political 
pressure from the Administration, because the law amended the 
Foreign Intelligence Surveillance Act (FISA) in a way that did 
not adequately protect the rights of American citizens who are 
caught up in warrantless government surveillance. I voted for 
the new bill in the Senate Select Committee on Intelligence 
because it takes a significant step away from the flawed August 
law and toward the protection of civil liberties. It is a 
significant first step in the four-step process that I hope 
will lead us to a bill that both protects Americans' privacy 
rights and strengthens our ability to conduct essential foreign 
intelligence surveillance.
    Everyone agrees that United States intelligence agencies 
should be able to wiretap foreign targets overseas without 
judicial authorization. The problem we are obliged to address, 
but failed to address adequately in the August law, emerges 
when surveillance overseas implicates: (1) U.S. citizens who 
happen to be abroad; or (2) U.S. citizens in America whose 
communications are intercepted incidentally, for instance when 
they communicate with a surveilled target.
    There are simple touchstones for protecting Americans' 
rights in this context: the principles that guide domestic law 
enforcement surveillance. When I served as a United States 
Attorney and as Rhode Island Attorney General, I sought, 
obtained, and oversaw wiretaps in gang, narcotics, and public 
corruption investigations. Two fundamental principles 
prevailed. First, the government cannot target Americans for 
surveillance without the approval of a judge. Second, 
surveilling agents are required by the court to ``minimize'' 
the surveillance if it is not relevant to the investigation. 
This helps protect innocent citizens who are not the target, 
but who talk to the target.
    I have worked closely with the Chairman and other members 
of the Committee to strengthen protections for U.S. citizens in 
the new bill, including by proposing and supporting a number of 
amendments. The new bill ensures the involvement and oversight 
of the Foreign Intelligence Surveillance Court when U.S. 
citizens abroad are targeted. I cosponsored and strongly 
supported an amendment, proposed by Senator Wyden, and approved 
by the Committee, that requires the Government to obtain a 
traditional warrant from the Foreign Intelligence Surveillance 
Court (FISC) if the Government wants to collect, from a source 
within the United States, against an American overseas. The 
amendment also requires that, in order to collect surveillance 
overseas on a U.S. citizen traveling or living overseas, the 
Government obtain a determination from the FISC that the 
targeted U.S. citizen is a foreign power or the agent of a 
foreign power. Furthermore, the FISC must issue an ex parte 
order approving this surveillance. These changes are critical 
to ensuring that the new warrantless surveillance authority 
enacted under the Protect America Act does not allow the 
Government to intrude inappropriately upon the privacy of U.S. 
citizens. Nonetheless, the Administration has already signaled 
that this amendment may create certain challenges that need to 
be resolved. If the Administration intends to propose an 
alternative, it must preserve the Court's role in determining 
whether there is probable cause to believe the U.S. citizen is 
a foreign power or an agent of a foreign power. U.S. citizens 
do not, and should not be expected to, leave their privacy 
rights behind every time they leave the United States.
    In protecting the privacy of Americans while conducting 
surveillance, the critical element is judicial oversight. In 
the August law, the FISC was authorized only to review the 
Government's determination that its surveillance targets 
persons ``reasonably believed to be outside the United 
States''--and to intervene only if the Government's 
determination is ``clearly erroneous.'' In contrast, under this 
bill, the FISC will need to approve both the ``targeting'' 
determination and the ``minimization'' procedures that are 
designed to protect U.S. citizens in America whose 
communications are intercepted incidentally. This bill also 
rejects the unduly permissive standard of review that the 
August law had imposed.
    While these changes are positive and significant, there 
remains important work to be done to improve the bill. The FISC 
should not be required to approve the minimization procedures 
for warrantless surveillance of Americans and then forced to 
ignore their implementation. I have drafted and introduced an 
amendment that would clarify that the FISC has the same powers 
to review the Government's compliance with minimization 
procedures for warrantless surveillance as it does with the 
minimization procedures used pursuant to traditional FISA 
warrants. This change is not yet a part of the bill, but I will 
continue to press for the Court's clear authority to check on 
the implementation of these minimization procedures. U.S. 
citizens whose communications are incidentally intercepted 
should enjoy a two-stage protection: the minimization 
procedures themselves, and the salutary prospect of judicial 
review of compliance. Engaging more than one branch of 
government is a traditional protection in our American system 
of government. Here, those checks and balances can be exercised 
in a way that is neither burdensome nor disruptive to 
intelligence-gathering operations. As the bill continues to 
move through the legislative process, I will seek to strengthen 
the protections for U.S. citizens.
    Finally, Congress is seeking to revise FISA in light of a 
program that was conducted outside its framework. As it acts, 
Congress must leave no shadow of a doubt that the Foreign 
Intelligence Surveillance Act, as amended, is the exclusive 
means for authorizing foreign intelligence surveillance. I will 
stand as a strong supporter of Senator Feinstein's efforts to 
prevent this Administration or future ones from acting outside 
this law.

                                                Sheldon Whitehouse.

             MINORITY VIEWS OF SENATORS FEINGOLD AND WYDEN

    As strong opponents of the Protect America Act, we have 
been very concerned about the vast new authorities granted 
under that legislation, as well as the possibility that its 
vague language will be interpreted by the executive branch to 
permit even broader surveillance than has already been 
acknowledged publicly. We support the underlying purpose of 
FISA reform: to permit the government to conduct surveillance 
of foreign targets, particularly terrorist suspects, as they 
communicate with other persons overseas, without having to 
obtain a FISA court order. We believe that this purpose can be 
achieved while protecting the rights and privacy of law-abiding 
Americans conducting international communications. We believe 
that the bill that passed the Senate Intelligence Committee 
unfortunately falls short of that goal in some respects, and we 
are also concerned that it also provides sweeping retroactive 
immunity to those alleged to have cooperated with the 
President's warrantless wiretapping program. We were therefore 
disappointed with the bill and voted against it. We look 
forward to the opportunity to debate further modifications to 
this bill as it passes through the Judiciary Committee and onto 
the Senate floor.
    We were pleased, however, that three amendments we offered 
passed. One amendment, which we offered along with Senator 
Whitehouse, ensures that whenever the government wants to 
target an American overseas, the FISA Court--and not just the 
Attorney General--must determine that there is probable cause 
that the American is an agent of a foreign power. Americans' 
rights should not diminish when they cross the border, nor 
should the extent of those rights be subject to the whim of the 
executive branch without the checks and balances provided by 
the court.
    Another amendment adopted by the Committee ensures that the 
Department of Justice Inspector General and other Inspectors 
General have the information they need to review fully how the 
new authorities are implemented. It also requires that the 
Administration provide Congress with additional information--
including access to reports and documentation--so that Congress 
can assess how the legislation is being used. For purposes of 
oversight and possible reauthorization at the end of a sunset 
period, this information is critical. In addition, an amendment 
offered by Senator Feingold and accepted by the Committee 
ensures that any FISA Court legal opinions related to the new 
authorities will be provided, in a timely manner, to Congress.
    Despite these improvements, the bill fails to protect the 
privacy rights of Americans in critical areas addressed in 
other amendments we either offered or filed. One such 
amendment, filed by Senator Feingold, would have permitted 
ongoing surveillance of persons overseas, but directed that if 
the government knows that certain communications involved 
persons in the United States, those communications with the 
U.S. would have to be sequestered and would be accessible to 
government agents only with the approval of the FISA Court or 
in emergencies. This amendment would grant the flexibility the 
administration has said it needs while providing protection to 
law-abiding Americans making international calls. It also 
recognizes that, given the broad new authorities provided by 
the PAA and this new legislation, non-statutory, classified 
minimization procedures do not provide the independent review 
needed to protect the privacy of Americans. We were 
disappointed that the Committee rejected an amendment offered 
by Senator Feingold that would have provided for stronger, more 
effective minimization procedures. The amendment would have 
limited the types of U.S. person information that could be 
disseminated to information necessary to protect against 
terrorism and other threats to national security, ensured that 
the FISA Court has sufficient information to assess compliance 
with minimization procedures, and given the FISA Court the 
authority to review and enforce that compliance. This amendment 
was a limited alternative to a FISA Court order requirement, 
and its defeat leaves in place what we believe are inadequate 
mechanisms for protecting the privacy of Americans' 
communications.
    We are also concerned about the lack of incentives for the 
government to target only those persons who are overseas in the 
first place. The bill improves upon the PAA by removing a 
``clearly erroneous'' standard for FISA court review of the 
procedures the government uses to ensure that surveillance 
targets are reasonably likely to be overseas. But there are no 
consequences to the government if the court determines that the 
government's procedures are not reasonably designed to target 
persons reasonably believed to be overseas. The government 
cannot use those procedures going forward, but it can retain 
and share everything it learned through the use of the unlawful 
procedures up until the point when the Court rejected them. We 
therefore supported an amendment offered by Senator Feingold 
that would have limited the use of U.S. person information 
obtained through targeting procedures later rejected by the 
court. The defeat of that amendment means that, even when the 
court finds that the government's procedures are targeting 
Americans in the United States without a warrant, the 
government can continue to use the information obtained through 
that surveillance however it sees fit. This loophole offers an 
invitation to warrantless wiretapping.
    Senator Wyden filed an amendment that would have limited 
the scope of the authorities to foreign intelligence 
information related to national security threats. The 
Administration's stated purpose for the PAA, and the purported 
emergency that drove the precipitous passage of that 
legislation, was the terrorist threat to the United States. We 
strongly support providing the government the authorities it 
needs to detect terrorists and other national security threats 
and believe that this can be done while protecting the rights 
and privacy interests of Americans. We do not believe, however, 
that broad new authorities related to any communications 
involving any foreign intelligence (a term that is very broadly 
defined) are justified, particularly in the absence of the 
kinds of oversight and checks and balances needed to defend the 
rights of Americans and protect against abuses.
    Another amendment we filed would have required that a court 
order be obtained when a ``significant purpose'' of the 
wiretapping is to obtain information on an American talking to 
a foreign target. The Director of National Intelligence has 
stated publicly that ``reverse targeting'' is a violation of 
the 4th Amendment to the United States Constitution and subject 
to criminal prosecution. This amendment would have provided 
some protection for this constitutional principle and would 
have prevented the government from using its foreign targeting 
authorities to obtain information on Americans. We are 
concerned that the language that remains in the bill--
prohibiting only surveillance when the purpose of the 
surveillance is to obtain information on an American--may not 
protect against the government targeting a person overseas as a 
fig leaf for surveillance of the American with whom the 
overseas person is communicating.
    We strongly supported Senator Nelson's amendment to strip 
from the bill a provision providing blanket immunity to private 
entities alleged to have cooperated with the Administration's 
warrantless wiretapping program. The arrangements made by the 
Administration the week of the mark-up to provide limited 
access to certain documents related to the program were 
unfortunately inadequate. More importantly, nothing in the 
documents, or anything else that we have seen in the course of 
our review of the program, has convinced us that a sweeping 
grant of immunity for private entities should have been 
included in this legislation.
    Finally, we were extremely disappointed that a Feingold 
amendment to shorten the six-year sunset to two years did not 
pass. The vast new authorities provided under the PAA, the 
ongoing confusion about how legislation in this area is and 
will be interpreted, and ongoing changes in telecommunications 
technology require that Congress conduct a near-term assessment 
of how this legislation is being interpreted and implemented 
and whether changes to the new authorities are needed. In our 
view, Congress should not wait until 2013 to conduct this 
thorough review.

                                   Russell D. Feingold.
                                   Ron Wyden.

                                  
