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# Legislative Bulletin.................................................October 17, 2007

**Contents:**

**H.R. 3773---** RESTORE Act of 2007

H.R. 3773--- RESTORE Act of 2007 (*Conyers, D-MI*)

**[Order of Business]{.underline}**: The bill is scheduled to be
considered on Wednesday, October 17^th^, subject to a closed rule
([[H.Res.
746]{.underline}](http://thomas.loc.gov/cgi-bin/query/z?c110:H.Res.746:/)).
The rule:

-   waives all points of order against *consideration* of the bill
    except those for earmarks and PAYGO;

-   provides that in lieu of the amendments recommended by the Judiciary
    Committee and the Intelligence Committee, an amendment in the nature
    of a substitute, as modified by a self-executing amendment, shall be
    considered as adopted;

-   waives all points of order against the bill itself, as amended,
    except for the earmark point of order; and

-   allows one motion to recommit, with or without instructions.

**[Summary]{.underline}**: H.R. 3773 would amend the Foreign
Intelligence Surveillance Act of 1978 (FISA) and provide the U.S.
intelligence community the authority to conduct foreign communication
surveillance through December 31, 2009. The bill would require that the
government receive permission from a Foreign Intelligence Surveillance
Court (FISC) to conduct surveillance on persons who are "reasonably
believed" to be non-U.S. citizens communicating outside of the U.S. The
bill would also establish new guidelines, procedures, and audit
requirements for agencies gathering foreign intelligence. The provisions
of the bill are as follows:

*Sec. 2 --- Clarification of Electronic Surveillance of Non-U.S. Persons
outside the U.S.*

-   Provides that a court order is not required to obtain communication
    between people who are reasonably believed to be located outside the
    U.S. and are not know to be U.S. citizens or residents for the
    purpose of collecting foreign intelligence information, regardless
    of whether the communication passes through the U.S. or the
    surveillance device is located within the U.S.;

-   Requires that if any communication obtained contains at least one
    party who is a U.S. person or is located in the U.S., the AG will
    ensure that no contents of any communication shall be disclosed,
    disseminated, or used for any purpose or retained for more than
    seven days.

*Sec. 3 --- Additional Authorization of Acquisitions of Communications
of Non-U.S. Persons outside the U.S. Who may be Communicating with
Persons inside the U.S*

-   Allows the Director of National Intelligence (DNI) and the Attorney
    General (AG), to apply to a FISC judge for an *ex parte* order, or
    an extension of an order, to authorize electronic surveillance for
    periods of up to one year, for the purpose of obtaining foreign
    intelligence information from people reasonably believe to be
    non-U.S. citizens outside of the U.S.

Note: *Ex parte* means a notice on behalf of one party *without* notice
to any other party.

-   States that the application for the order is required to include
    certification from the AG and the DNI that:

    a.  the targets of intelligence acquisition are reasonably believed
        to be non-U.S. persons outside of the U.S.;

    b.  the acquisition of intelligence involves obtaining the
        assistance of a communications provider; and

    c.  the purpose of the acquisition is to obtain foreign intelligence
        information.

-   States that the application for the order is required to include a
    description of:

    a.  procedures that will be used to determine that the targets of
        the surveillance are non-U.S. persons located outside the U.S.;

    b.  the nature of the information sought;

    c.  minimization procedures; and

    d.  guidelines that will be used.

-   States that the application for the order is not required to
    identify the specific facilities, places, premises, or property at
    which the acquisition of foreign intelligence will be directed.

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-   Provides that a judge will review and approve the application if the
    judge finds that:

    a.  the proposed procedures in the application are reasonably
        designed to determine whether the targets are non-U.S. persons
        located outside the U.S.;

    b.  the proposed minimization procedures meet the definition under
        section 101(h); and

    c.  the guidelines ensure that the government obtains an
        individualized warrant when a significant purpose of the
        collection is to acquire the communications of a specific United
        States Person reasonably believed to be inside the United
        States.

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-   Directs a judge who is approving an application to issue an order
    that:

a)  authorizes surveillance as requested, or as modified by the judge;

b)  requires a communications service provider (or other person who has
    lawful authority to access the information or facilities) to furnish
    the applicant information (upon request) in a manner that will
    protect the secrecy of the surveillance and produce minimum
    interference with the services of that provider;

c)  requires the service provider (upon request of the applicant) to
    maintain records concerning the acquisition or the aid furnished
    (under security procedures approved by the AG or the Director of
    National Intelligence);

d)  directs the federal government to compensate a person (at the
    prevailing rate) for providing information or assistance to such an
    order and to provide a portion of the court order directing
    compliance to the communications service provider; and

e)  directs the applicant to follow the minimization procedures as
    proposed or modified by the court.

-   Allows the AG, through the FISA court, to compel a communications
    service provider to comply with an order.

-   Provides that no cause of action shall lie in any court against a
    communications service provider for complying with an order issued
    under this section.

-   Requires the DNI and the FISA court to retain any order issued under
    this section for at least ten years.

-   Requires the FISA court judge to assess compliance on a quarterly
    basis with the procedures and guidelines of the surveillance order.

*Sec. 4 --- Emergency Authorization of Acquisition of Communications of
non-U.S. Persons outside the U.S.*

-   Requires the DNI and the AG to submit an application within seven
    days of authorizing emergency acquisition of foreign intelligence.

-   Allows the DNI and the AG to jointly authorize the emergency
    acquisition of foreign intelligence for a period of no more than 45
    days if:

1)  The DNI and AG jointly determine that:

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a)  an emergency situation exists that prohibits acquisition under
    section 105B;

b)  the targets of the acquisition are reasonably believed to be
    non-U.S. persons outside of the U.S.;

c)  there are reasonable procedures in place to determine that the
    target of acquisition is a non-U.S. person outside the U.S.;

d)  the acquisition involves obtaining foreign intelligence from, or
    with the assistance of, a communications service provider;

e)  the purpose of the acquisition is to obtain foreign intelligence
    information;

f)  minimization procedures meet the definition under 101(h); and

g)  there are reasonable guidelines designed to ensure that the
    government obtains an individualized warrant when a significant
    purpose of the collection is to acquire the communications of a
    specific United States person reasonably believed to be located
    inside the United States.

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2)  The DNI and the AG inform a FISA court judge of any emergency
    acquisition of foreign intelligence.

-   Provides that when the emergency acquisition of foreign intelligence
    is authorized, the AG may direct a communications service provider
    to:

a)  furnish the AG with information, facilities, or technical assistance
    in a manner that will protect the secrecy of the acquisition and
    produce minimum interference with the communications service
    provider; and

b)  maintain any records concerning the acquisition or aide furnished.

*Sec. 5 --- Oversight of Acquisitions of Communications of non-U.S.
Persons outside the U.S.*

-   Requires the DNI and the AG to submit each application or order
    (including certification, purpose, procedures, and guidelines) for
    acquisition of foreign intelligence under section 105B to the
    appropriate committee of Congress within seven days.

-   Requires the DNI and the AG complete quarterly audits on the
    procedures and guidelines of every order authorizing the acquisition
    of foreign intelligence and submit the results to the appropriate
    committee of Congress, including:

a)  the number of targets that were later determined to be in the U.S.;

b)  the number of people in the U.S. whose communications have been
    acquired under an order;

c)  the number and nature of reports disseminated that contain
    information on a U.S. person that was collected under such order;
    and

d)  the number of applications submitted for electronic surveillance for
    targets whose communications were acquired under such order.

-   Requires the AG to submit the report to the appropriate committees
    in Congress within 30 days of the completion of an audit.

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-   Requires the DNI and the AG to submit quarterly compliance reports
    to the appropriate committees in Congress and the FISA court
    regarding the acquisition of foreign intelligence, including any
    non-compliance by:

a)  an element of the intelligence community with minimization,
    guidelines or procedures; and

b)  a person directed to provide information, facilities, or technical
    assistance.

-   Requires the DNI and the AG to submit annual reports to the
    appropriate committees of Congress containing the number of
    emergency authorizations of intelligence acquisitions and any
    incidents of non-compliance with an emergency authorization.

*Sec. 6 --- Foreign Intelligence Surveillance Court En Banc.*

-   Allows a FISA court, if it so chooses, to sit *en banc* (the full
    court, with multiple judges).

*Sec. 7 --- Foreign Intelligence Surveillance Court Matters*

-   Increases the number of FISC judges who may hear applications for
    and grant orders approving electronic surveillance anywhere within
    the United States.

-   Provides that a FISC judge may make a determination to approve,
    deny, or modify an application approving electronic surveillance
    within 24 hours of receiving the application.

*Sec. 8 --- Reiteration of FISA as the Exclusive Means by which
Electronic Surveillance May Be Conducted for Gathering Foreign
Intelligence Information*

-   Reiterates that FISA shall be the exclusive means by which
    electronic surveillance for the purpose of gathering foreign
    intelligence may be conducted.

*Sec. 9 --- Enhancement of Electronic Surveillance Authority in Wartime
and Other Collection*

-   Allows the President, through the Attorney General, to authorize
    electronic surveillance without a court order for no more than 15
    days following a declaration of war by the Congress or when the
    constitutional powers of the President as Commander-in-Chief
    introduce United States Armed Forces into hostilities pursuant to
    specific statutory authorization.

*Sec. 10 --- Audit of Warrantless Surveillance Programs*

-   Requires the Inspector General of the Department of Justice (DOJ IG)
    to **complete an audit of all warrentless surveillance conducted on
    or after September 11, 2001, including the "Terrorist Surveillance
    Program referred to by the President in a radio address on December
    17, 2005"** within 180 days.

-   Requires the DOJ IG to submit a report to the Permanent Select
    Committee on Intelligence and appropriate committees in Congress
    containing the results of the audit **including all documents
    procured**. **The report shall be submitted in unclassified form,
    but may include a classified annex.**

-   Requires the DNI to ensure that the process for granting necessary
    clearances for the DOJ IG and appropriate staff is done
    expeditiously.

*Sec. 11 --- Record Keeping System on Acquisition of Communication of
U.S. Persons*

-   Requires that the DNI and the AG establish and maintain a
    record-keeping system to keep track of:

a)  instances where the identity of a U.S. person whose communications
    were acquired is disclosed by an element of the intelligence
    community;

b)  the departments, agencies, and persons to whom such identity
    information was disclosed.

-   Requires the DNI and the AG to submit a report to the appropriate
    committees of Congress regarding the record-keeping system.

*Sec. 12 --- Authorization for Increased Resources Related to Foreign
Intelligence Surveillance*

-   Authorizes the appropriation of "such sums as may be necessary" for
    submitting applications to the FISA courts and fulfilling audit,
    reporting, and record-keeping requirements.

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

-   Authorizes the National Security Division of the Department of
    Justice and the DNI such additional personnel as may be necessary to
    carry out the prompt and timely preparation, modification, and
    review of applications under FISA.

*Sec. 14 --- Document Management System for Applications for Orders
Approving Electronic Surveillance*

-   Requires the AG, in consultation with the DNI and the FISC, to
    develop a classified document management system that permits the
    prompt preparation, modification, and review by appropriate
    personnel of the DOJ, the FBI, the NSA, and other applicable
    elements of the government of surveillance applications under FISA.

*Sec. 15 --- Training of Intelligence Community Personnel in Foreign
Intelligence Collection Matters*

-   Requires the DNI and the AG to develop regulations to establish
    procedures for conducting and seeking approval of electronic
    surveillance, physical search, and the installation and use of pen
    registers and trap and trace devices on an emergency basis under
    FISA.

*Sec. 16 --- Information for Congress on the Terrorist Surveillance
Program and Similar Programs*

-   Requires the President, within seven days of enactment, to fully
    inform each member of the Permanent Select Committee on Intelligence
    of the House and the Senate on:

a)  the Terrorist Surveillance Program of the National Security Agency;
    and

b)  any program in existence from September 11, 2001, that involves the
    electronic surveillance of United States persons in the United
    States for foreign intelligence or other purposes, without fully
    complying with the procedures set forth in FISA.

*Sec. 18 --- Sunset; Transition Period*

-   Provides that provisions under this Act are repealed as of December
    31, 2009, and that any authorization that was in effect prior to the
    enactment of this Act shall remain in effect until its expiration or
    until 180 days after the date of enactment.

**The following sections will be re-designated at the appropriate place
in the bill:**

*Certification to Communications Service Providers that Acquisitions are
Authorized Under FISA*

-   Requires an applicant for a FISA surveillance order provide
    communication service providers with a certification stating that
    the surveillance is authorized and that all FISA requirements have
    been met.

*Statute of Limitations*

-   Prohibits a person from being prosecuted, tried, or punished for any
    FISA related offense unless the indictment is found or the
    information is instituted no later than ten years after the
    commission of the offense.

*No Rights Under the RESTORE Act for Unlawful Residents*

-   States that nothing in the Act will prevent lawfully conducted
    surveillance of or grant any rights to illegal aliens.

**[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.

In April, 2007, Director of National Intelligence Mike McConnell came to
Congress with

[a proposal](http://www.dni.gov/press_releases/20070413_release.pdf) to
extend and modernize FISA in order to address changes in
telecommunications technology. H.R. 3773 differs greatly from Director
McConnell's original proposal by requiring professionals in the
intelligence community to obtain a FISC warrant or court order before
conducting surveillance overseas. The underlying legislation also
diverges from McConnell's proposal by not granting protection from
liability to communication providers that helped intelligence agencies
gather information following 9/11.

In August, two short term extensions of FISA were considered in order to
extend surveillance authority and modernize overseas communication
monitoring. H.R. 3356, the Improving Foreign Intelligence Surveillance
to Defend the Nation and the Constitution Act of 2007, a Democrat
proposal that contained many similar provisions to the underlying bill,
was defeated on August 3, 2007 while under suspension by a vote of [218
-- 207](http://clerk.house.gov/evs/2007/roll821.xml). S. 1927, the
Protect America Act of 2007 (PAA), a Republican sponsored, bi-partisan
bill that allowed intelligence professionals to gather overseas
information without a court order, passed the House by a vote of [227 --
183](http://clerk.house.gov/evs/2007/roll836.xml). The PAA, which will
sunset 180 days after its enactment, would be repealed and replaced by
the H.R. 3773. During committee consideration of H.R. 3773, an amendment
in the nature of a substitute was offered to permanently extend the PAA
and was defeated by a vote of 14 -- 21.

**[Possible Conservative Concerns]{.underline}**: Some conservatives may
be concerned that H.R. 3773 would impede the efforts of intelligence
professionals and endanger the country's security by requiring a court
order to conduct electronic surveillance on a person reasonably believed
to be a non-U.S. citizen operating outside of the U.S. Further, some
conservatives may also be concerned that H.R. 3773 would require court
approval to obtain foreign intelligence in non-emergency situations,
which may hinder our ability to properly collect and respond to
terrorist threats and pertinent intelligence.

Some conservative may also be concerned that H.R. 3773 omits language
that would protect communication providers that have assisted the
intelligence community in the past from legal liability. In addition,
conservatives may be concerned that the bill would sunset on December
31, 2009, leaving the intelligence community in the current
less-than-desirable situation in just two years.

The Judiciary Committee's dissenting views, in [House Report 110 -- 373,
Part
I](http://www.congress.gov/cgi-lis/cpquery/2?cp110:./temp/~cp110U7ozV&sid=cp110U7ozV&item=2&sel=DOC&hd_count=2&xform_type=3&r_n=hr373p1.110&&sid=cp110U7ozV&&),
as well as the Permanent Committee on Intelligence's dissenting views,
in [House Report 110 -- 373, Part
II](http://www.congress.gov/cgi-lis/cpquery/1?cp110:./temp/~cp110U7ozV&sid=cp110U7ozV&item=1&sel=DOC&hd_count=2&xform_type=3&r_n=hr373p2.110&&sid=cp110U7ozV&&),
and the Administration, in its [Statement of Administration
Policy](http://www.whitehouse.gov/omb/legislative/sap/110-1/hr3773sap-r.pdf)
(SAP), have expressed a number of additional concerns, including:

-   The extensive oversight provisions imposed by the bill, such as
    audit and reporting requirements, may detract from the already
    scarce resources of the nation's intelligence community.

-   The bill may infringe American's civil liberties by creating and
    maintaining a single database that lists all Americans who have been
    identified in foreign intelligence information and whose identity
    has been disclosed to other agencies regardless of whether or not
    they have been suspected as a terrorist or spy.

-   The bill may further hamper the intelligence community from doing
    its job by giving FISC judges the power to assess compliance with
    the court order every 120 days with no restrictions on the process
    for review or remedy.

**[Committee Action]{.underline}**: H.R. 3773 was introduced on October
9, 2007, and was referred to the Committee on the Judiciary, and the
Committee on Intelligence (Permanent Select). The following day, a
mark-up was held in the Judiciary Committee. The bill was reported out
of the committee, as amended, by a vote of 20 -- 14.

On October 12, 2007 the Judiciary Committee reported [House Report 110
-- 373, Part
I](http://www.congress.gov/cgi-lis/cpquery/2?cp110:./temp/~cp110U7ozV&sid=cp110U7ozV&item=2&sel=DOC&hd_count=2&xform_type=3&r_n=hr373p1.110&&sid=cp110U7ozV&&),
and the Committee on Intelligence (Permanent) reported [House Report 110
-- 373, Part
II](http://www.congress.gov/cgi-lis/cpquery/1?cp110:./temp/~cp110U7ozV&sid=cp110U7ozV&item=1&sel=DOC&hd_count=2&xform_type=3&r_n=hr373p2.110&&sid=cp110U7ozV&&).

**[Administration Position]{.underline}**: According to a
[SAP](http://www.whitehouse.gov/omb/legislative/sap/110-1/hr3773sap-r.pdf)
released by the Administration on Tuesday, October 16,2007, "if H.R.
3773 is presented in its current form to the President, **the Director
of National Intelligence and the President's other senior advisers will
recommend that he veto the bill."**

**[Cost to Taxpayers]{.underline}**: CBO finds that "several sections of
the bill would, if implemented, increase discretionary costs. However,
CBO does not have access to the information necessary to estimate the
impact on the budget of implementing H.R. 3773." All funds for H.R. 3773
would be subject to appropriation.

**[Does the Bill Expand the Size and Scope of the Federal
Government?]{.underline}** Yes, the bill 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}**: Yes, the bill contains state
and local government mandates by preempting state and local liability
laws by protecting certain individuals who comply with federal requests
for information from lawsuits.

H.R. 3773 also contains private sector mandates because it would compel
communication services providers to assist the government with
electronic surveillance.

**[Does the Bill Comply with House Rules Regarding Earmarks/Limited Tax
Benefits/Limited Tariff Benefits?]{.underline}**: The Judiciary
Committee, in [House Report
110---373](http://www.congress.gov/cgi-lis/cpquery/2?cp110:./temp/~cp1101ICnd&sid=cp1101ICnd&item=2&sel=DOC&hd_count=2&xform_type=3&r_n=hr373p1.110&&sid=cp1101ICnd&&),
asserts that, "H.R. 3773 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in clause 9
of rule XXI."

**[Constitutional Authority]{.underline}**: The Judiciary Committee, in
[House Report
110---373](http://www.congress.gov/cgi-lis/cpquery/2?cp110:./temp/~cp1101ICnd&sid=cp1101ICnd&item=2&sel=DOC&hd_count=2&xform_type=3&r_n=hr373p1.110&&sid=cp1101ICnd&&),
cites constitutional authority in Article I, Section 8, Clause 1
(relating to the congressional power to promote the general welfare of
the United States) and Clause 18 (relating to the congressional power to
make all laws necessary and proper for carrying into Execution the
foregoing Powers).

**[RSC Staff Contact]{.underline}**: Andy Koenig;
<andy.koenig@mail.house.gov>; 202-226-9717.