![](media/image1.jpeg){width="6.489583333333333in"
height="1.15625in"}**Legislative
Bulletin...........................................August 4, 2007**

> **Contents:**
>
> **S. 1927** --- Protect America Act of 2007

S. 1927 --- Protect America Act of 2007 (Sen. McConnell, R-KY)

**[Order of Business]{.underline}:** The bill is scheduled for
consideration on Saturday, August 4 2007, likely under a motion to
suspend the rules and pass the bill.

[Brief History]{.underline}: The Senate passed S. 1927 last night by a
vote of 60-28. The House version of FISA reform, H.R. 3356, failed by a
vote of [218-207](http://clerk.house.gov/evs/2007/roll821.xml) under
suspension of the rules yesterday. [Click
here](http://www.house.gov/hensarling/rsc/doc/LB_080307_FISA.doc) to
view the RSC Legislative Bulletin on H.R. 3356.

[Note]{.underline}: The Rules of the House only allow bills to be
considered under suspension of the rules on Mondays, Tuesdays, and
Wednesdays. For a bill to be considered under suspension of the rules
during the remainder of the week, the Rules Committee must pass a rule
(as they did earlier this week to consider H.R. 3356).

**[Summary]{.underline}:** S. 1927 would amend the Foreign Intelligence
Surveillance Act (FISA) of 1978 to amend procedures to request and
initiate an electronic surveillance order. The major provisions of the
bill are summarized below. Where applicable, differences with the H.R.
3356 (the bill considered by the House yesterday) have been noted.

*Additional Procedures for Authorizing Certain Electronic Surveillance.*

-   States that nothing in the definition of electronic surveillance
    (section 101(f) of FISA) may be construed to encompass surveillance
    directed at a person reasonably believed to be outside the U.S. In
    other words, if the person under surveillance is outside the U.S.,
    it does [not]{.underline} qualify as "electronic surveillance" and
    therefore is not subject to the same restrictions, court orders,
    etc.

> [Note]{.underline}: This provision is broader than the provision
> contained in H.R. 3356, which simply stated that a court order is not
> required to conduct surveillance on persons outside the U.S. (but did
> not change the definition or explicitly provide the intelligence
> community surveillance authority on persons not in the U.S.).

-   Authorizes Director of National Intelligence (DNI) and the Attorney
    General (AG) to authorize the acquisition of foreign intelligence
    information for up to one year on persons believed to be outside the
    U.S., if:

    -   "reasonable procedures" are in place to determine that the
        information acquired concerns persons reasonably believed to be
        outside the U.S. (and such procedures are subject to court
        review);

    -   the acquisition does not constitute electronic surveillance;

    -   the acquisition involves obtaining the foreign intelligence
        information from or with the assistance of a communications
        service provider (or related person or agent) who has access to
        communications;

    -   a significant purpose of the acquisition is to obtain foreign
        intelligence information; and

    -   the minimization procedures to be used adhere to current law.

> [Note]{.underline}: Related provisions contained in H.R. 3356 required
> the AG to apply to a judge to obtain authority for up to one year to
> conduct foreign intelligence.
>
> [Foreign intelligence information]{.underline} is defined in U.S. Code
> to mean information necessary to protect the United States against
> actual or potential grave attack, sabotage, or international
> terrorism.
>
> [Electronic surveillance]{.underline} means the acquisition (using a
> surveillance device) of any wire, radio, or related electronic
> communication sent or received by a known U.S. person where the person
> has a reasonable expectation of privacy and a warrant would be
> required for law enforcement purposes.
>
> [Minimization procedures]{.underline} means specific procedures that
> must be adopted by the AG designed to minimize the acquisition and
> retention -- and to prohibit the dissemination -- of non-publicly
> available information concerning unconsenting U.S. persons.
>
> *Source: 50 U.S.C 1801(e).*

-   Requires the determination by the DNI or the AG of the above-noted
    provisions to be in the form of a written certification, under oath,
    supported as appropriate by affidavit of appropriate officials in
    senior positions in the national security field.

-   States that the certification is not required to identify the
    specific facilities, places, premises, or property where the
    acquisition of foreign intelligence information is being directed.
    (A similar provision was included in H.R. 3356).

-   Requires the AG to transmit "as soon as practicable" a copy of a
    certification (under seal) to the applicable court.

-   Allows an acquisition to be conducted based on oral instructions by
    the AG or NDI if time does not permit the preparation of a
    certification, and requires the AG and NDI to ensure that
    minimization and other relevant procedures are adhered to.

-   Authorizes the DNI or AG, regarding an authorized acquisition, to
    direct a person to:

    -   immediately provide the government with all information and
        assistance necessary to accomplish the acquisition, and in a way
        that will protect the secrecy of the acquisition and produce
        minimum interference with any services the person may be
        providing;

    -   maintain, under security procedures approved by the AG, any
        applicable records regarding the acquisition or aid furnished.

> [Note]{.underline}: A similar provision existed in H.R. 3356, but it
> applied to a judge's order.

-   Requires that the government compensate, at a prevailing rate, a
    person for providing information and assistance pursuant to the
    above provision.

> [Note]{.underline}: A similar provision existed in H.R. 3356, but it
> applied to a judge's order.

-   Authorizes the AG, in the case of a failure to comply with a
    directive to comply with an acquisition, to invoke the aid of the
    relevant court, and directs the court to issue an order requiring
    the person to comply (if the directive is found to comply with
    regulations). Failure to obey the court's order may be punished by
    the court as contempt of court.

-   Allows any person receiving a directive (regarding an acquisition)
    to challenge the legality of that directive by filing a petition
    under procedures set forth in current law (section 103(e)(1) of
    FISA), and requires the court to conduct an initial review within 48
    hours, among other stipulations.

-   Requires the AG, within 120 days of enactment, to submit to the
    applicable court the procedures by which the government determines
    that acquisitions (section 105b, regarding foreign intelligence) do
    not constitute electronic surveillance (i.e. -- does not involve
    surveillance on U.S persons). These procedures must be updated and
    resubmitted to the court annually. Unless the court concludes that
    the determination used is "clearly erroneous," it must enter an
    order approving the continued use of the procedures. If the court
    finds the determination to be clearly erroneous, the government must
    submit new procedures within 30 days.\
    [Note]{.underline}: H.R. 3356 contained a similar provision.

-   Requires the AG, on a semi-annual basis, to inform the relevant
    congressional committees concerning acquisitions during the previous
    6-month period. The report must include incidents of non-compliance
    by the intelligence community of the established guidelines, and the
    number of certifications and directives issued during the reporting
    period.\
    [Note]{.underline}: H.R. 3356 contained a similar provision.

-   Sunset: All of the above-mentioned provisions expire 180 days after
    enactment (though the bill allows certain existing directives to
    continue for up to one year).\
    [Note]{.underline}: H.R. 3356 contained a similar section,
    sunsetting all the provisions of the Act within 180 days.

[]{.mark}

**[Additional Background]{.underline}:** FISA was created in 1978 to
establish a process for obtaining a court order to conduct foreign
intelligence surveillance within the United States. Due to dramatic
changes in telecommunications technology since then, FISA now frequently
requires government officials to obtain a court order to gather
information on suspected terrorists and various other foreign
intelligence targets located overseas. Federal law has not historically
restricted law enforcement officials or intelligence agents from
monitoring overseas communications, and this bill is intended to address
these concerns.

[]{.mark}

**[Previous Conservative Concerns]{.underline}:** Several of the major
concerns that some conservatives had with H.R. 3356 have been rectified
in S. 1927, including clarifying the definition of electronic
surveillance to exclude persons outside the U.S., and allowing the
Attorney General or the Director of National Intelligence to authorize
foreign intelligence information gathering without a court order.

The provisions of the bill expire in 180 days (rather than after 120
days in H.R. 3356), so a permanent solution to these FISA issues will
still be necessary.

[]{.mark}

The bill is [supported]{.underline} by Intelligence Committee Affairs
Ranking Member Pete Hoekstra and Judiciary Committee Ranking Member
Lamar Smith. Director of National Intelligence McConnell strongly
opposed H.R. 3356. While a statement from Director McConnell on the
Senate-passed S. 1927 was not available, the bill does address several
of the primary concerns noted in his letter dated August 2, 2007, which
included the following statement:

[]{.mark}

> First, the Intelligence Community should not be required to obtain
> court orders to effectively collect foreign intelligence from foreign
> targets located overseas. The bill must not require court approval
> before urgently needed intelligence collection can begin against a
> foreign target located overseas. The delays of a court process that
> requires judicial determinations in advance to gather vital
> intelligence from foreign targets overseas can in some cases prevent
> the rapid gathering of intelligence necessary to provide warning of
> threats to the country.

**[Committee Action]{.underline}:** S. 1927 was passed by the Senate by
a vote of 60-28 on Friday, August 3. H.R. 3356, the House FISA bill, was
introduced and considered on Friday, August 3.

**[Administration Policy]{.underline}:** An official Statement of
Administration Policy is not available, but the President made the
following statement this morning in support of S. 1927:

> Last night, the United States Senate passed legislation to give our
> intelligence professionals the legal tools and authority they need to
> keep America safe. I appreciate the hard work they did to find common
> ground to pass this critical bill. Today, the House of Representatives
> has an opportunity to consider that bill, pass it and send it to me
> for my signature. Protecting America is our most solemn obligation and
> I urge the House to pass this bill without delay.

**[Cost to Taxpayers]{.underline}:** A CBO score of S. 1927 is
unavailable, though the bill does not authorize any expenditures.

**[Does the Bill Expand the Size and Scope of the Federal
Government?]{.underline}:** The bill clarifies and alters current
regulations and requirements regarding electronic surveillance and
foreign intelligence information gathering.

**[Does the Bill Contain Any New State-Government, Local-Government, or
Private-Sector Mandates?]{.underline}:** No.

**[Constitutional Authority]{.underline}:** A committee report citing
constitutional authority is unavailable.

House Rule XIII, Section 3(d)(1), requires that all committee reports
contain "a statement citing the *specific* powers granted to Congress in
the Constitution to enact the law proposed by the bill or joint
resolution." *\[emphasis added\]*

**[RSC Staff Contact]{.underline}:** Derek V. Baker;
[derek.baker@mail.house.gov](mailto:Derek.baker@mail.house.gov);
202-226-8585

\###