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[House Report 109-680]
[From the U.S. Government Publishing Office]

109th Congress                                            Rept. 109-680
                        HOUSE OF REPRESENTATIVES
 2d Session                                                      Part 1

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

 
               ELECTRONIC SURVEILLANCE MODERNIZATION ACT

                                _______
                                

               September 25, 2006.--Ordered to be printed

                                _______
                                

  Mr. Hoekstra, from the Permanent Select Committee on Intelligence, 
                        submitted the following

                              R E P O R T

                             together with

                     ADDITIONAL AND MINORITY VIEWS

                        [To accompany H.R. 5825]

      [Including cost estimate of the Congressional Budget Office]

  The Permanent Select Committee on Intelligence, to whom was 
referred the bill (H.R. 5825) to update the Foreign 
Intelligence Surveillance Act of 1978, having considered the 
same, report favorably thereon with an amendment and recommend 
that the bill as amended do pass.
  The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Electronic Surveillance Modernization 
Act''.

SEC. 2. FISA DEFINITIONS.

  (a) Agent of a Foreign Power.--Subsection (b)(1) of section 101 of 
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801) is 
amended--
          (1) in subparagraph (B), by striking ``; or'' and inserting 
        ``;''; and
          (2) by adding at the end the following new subparagraph:
                  ``(D) possesses or is reasonably expected to transmit 
                or receive foreign intelligence information while in 
                the United States; or''.
  (b) Electronic Surveillance.--Subsection (f) of such section is 
amended to read as follows:
  ``(f) `Electronic surveillance' means--
          ``(1) the installation or use of a surveillance device for 
        the intentional collection of information relating to a person 
        who is reasonably believed to be in the United States by 
        intentionally targeting that person, under circumstances in 
        which the person has a reasonable expectation of privacy and a 
        warrant would be required for law enforcement purposes; or
          ``(2) the intentional acquisition of the contents of any 
        communication, without the consent of a party to the 
        communication, under circumstances in which a person has a 
        reasonable expectation of privacy and a warrant would be 
        required for law enforcement purposes, if both the sender and 
        all intended recipients are located within the United 
        States.''.
  (c) Minimization Procedures.--Subsection (h) of such section is 
amended--
          (1) in paragraph (2), by striking ``importance;'' and 
        inserting ``importance; and'';
          (2) in paragraph (3), by striking ``; and'' and inserting 
        ``.''; and
          (3) by striking paragraph (4).
  (d) Wire Communication and Surveillance Device.--Subsection (l) of 
such section is amended to read as follows:
  ``(l) `Surveillance device' is a device that allows surveillance by 
the Federal Government, but excludes any device that extracts or 
analyzes information from data that has already been acquired by the 
Federal Government by lawful means.''.
  (e) Physical Search.--Section 301(5) of the Foreign Intelligence 
Surveillance Act of 1978 (50 U.S.C. 1821(5)) is amended by striking 
``Act, or (B)'' and inserting ``Act, (B) activities described in 
section 102(b) of this Act, or (C)''.

SEC. 3. AUTHORIZATION FOR ELECTRONIC SURVEILLANCE FOR FOREIGN 
                    INTELLIGENCE PURPOSES.

  Section 102 of the Foreign Intelligence Surveillance Act of 1978 (50 
U.S.C. 1802) is amended--
          (1) in subsection (a)(1)--
                  (A) in subparagraph (A)--
                          (i) in clause (i), by striking ``transmitted 
                        by means of'' and all that follows and 
                        inserting ``of a foreign power, as defined in 
                        paragraph (1), (2), or (3) of section 101(a), 
                        or an agent of a foreign power, as defined in 
                        section 101(b)(1); or''; and
                          (ii) in clause (ii), by striking ``or (3);'' 
                        and inserting ``or (3); and'';
                  (B) by striking subparagraph (B); and
                  (C) by redesignating subparagraph (C) as subparagraph 
                (B);
          (2) by striking subsection (a)(4);
          (3) in subsection (b), to read as follows:
  ``(b)(1) The Attorney General may require, by written certification, 
any person with authorized access to electronic communications or 
equipment used to transmit or store electronic communications to 
provide information, facilities, or technical assistance--
          ``(A) necessary to accomplish electronic surveillance 
        authorized under subsection (a); or
          ``(B) to an official designated by the President for a period 
        of up to one year, provided the Attorney General certifies in 
        writing, under oath, that the provision of the information, 
        facilities, or technical assistance does not constitute 
        electronic surveillance.
  ``(2) The Attorney General may require a person providing 
information, facilities, or technical assistance under paragraph (1) 
to--
          ``(A) provide the information, facilities, or technical 
        assistance in such a manner as will protect the secrecy of the 
        provision of such information, facilities, or technical 
        assistance and produce a minimum of interference with the 
        services that such person is providing the customers of such 
        person; and
          ``(B) maintain under security procedures approved by the 
        Attorney General and the Director of National Intelligence any 
        records concerning such electronic surveillance or the 
        information, facilities, or technical assistance provided which 
        such person wishes to retain.
  ``(3) The Government shall compensate, at the prevailing rate, a 
person for providing information, facilities, or technical assistance 
pursuant to paragraph (1).''; and
          (4) by adding at the end the following new subsection:
  ``(c) Notwithstanding any other provision of law, the President may 
designate an official who may authorize electronic surveillance of 
international radio communications of a diplomat or diplomatic mission 
or post of the government of a foreign country in the United States in 
accordance with procedures approved by the Attorney General.''.

SEC. 4. APPLICATIONS FOR COURT ORDERS.

  Section 104 of the Foreign Intelligence Surveillance Act of 1978 (50 
U.S.C. 1804) is amended--
          (1) in subsection (a)--
                  (A) by striking paragraphs (6), (9), and (11);
                  (B) by redesignating paragraphs (7), (8), and (10) as 
                paragraphs (6), (7), and (8), respectively;
                  (C) in paragraph (6), as redesignated by subparagraph 
                (B)--
                          (i) in the matter preceding subparagraph (A), 
                        by striking ``or officials designated'' and all 
                        that follows through ``consent of the Senate'' 
                        and inserting ``designated by the President to 
                        authorize electronic surveillance for foreign 
                        intelligence purposes'';
                          (ii) in subparagraph (C), by striking 
                        ``techniques;'' and inserting ``techniques; 
                        and'';
                          (iii) by striking subparagraphs (D) and (E) 
                        and inserting the following:
                  ``(D) including a statement of the basis for the 
                certification that the information sought is the type 
                of foreign intelligence information designated;'';
                  (D) in paragraph (7), as redesignated by subparagraph 
                (B)--
                          (i) by striking ``a statement of the means by 
                        which the surveillance will be effected and''; 
                        and
                          (ii) by adding ``and'' at the end; and
                  (E) in paragraph (8), as redesignated by subparagraph 
                (B), by striking ``; and'' and inserting a period;
          (2) by striking subsection (b); and
          (3) by redesignating subsections (c), (d), and (e) as 
        subsections (b), (c), and (d), respectively.

SEC. 5. ISSUANCE OF AN ORDER.

  Section 105 of the Foreign Intelligence Surveillance Act of 1978 (50 
U.S.C. 1805) is amended--
          (1) in subsection (a)--
                  (A) by striking paragraph (1); and
                  (B) by redesignating paragraphs (2), (3), (4), and 
                (5) as paragraphs (1), (2), (3), and (4), respectively;
          (2) in subsection (c)(1)--
                  (A) in subparagraph (B), by striking ``known;'' and 
                inserting ``known; and'';
                  (B) by striking subparagraphs (C), (D), and (F);
                  (C) by redesignating subparagraph (E) as subparagraph 
                (C); and
                  (D) in subparagraph (C), as redesignated by 
                subparagraph (C), by striking ``approved; and'' and 
                inserting ``approved.'';
          (3) by striking subsection (d);
          (4) by redesignating subsections (e), (f), (g), (h), and (i) 
        as subsections (d), (e), (f), (g), and (h), respectively;
          (5) in subsection (d), as redesignated by paragraph (4)--
                  (A) in paragraph (1), by striking ``for the period 
                necessary'' and all that follows and insert ``for a 
                period not to exceed one year.''; and
                  (B) in paragraph (2), by striking ``original order, 
                except that'' and all that follows and inserting 
                ``original order for a period not to exceed one 
                year.'';
          (6) in subsection (e), as redesignated by paragraph (4), to 
        read as follows:
  ``(e) Notwithstanding any other provision of this title, the Attorney 
General may authorize the emergency employment of electronic 
surveillance if the Attorney General--
          ``(1) determines that an emergency situation exists with 
        respect to the employment of electronic surveillance to obtain 
        foreign intelligence information before an order authorizing 
        such surveillance can with due diligence be obtained;
          ``(2) determines that the factual basis for issuance of an 
        order under this title to approve such surveillance exists;
          ``(3) informs a judge having jurisdiction under section 103 
        at the time of such authorization that the decision has been 
        made to employ emergency electronic surveillance; and
          ``(4) makes an application in accordance with this title to a 
        judge having jurisdiction under section 103 as soon as 
        practicable, but not more than 120 hours after the official 
        authorizes such surveillance.
If the Attorney General authorizes such emergency employment of 
electronic surveillance, the Attorney General shall require that the 
minimization procedures required by this title for the issuance of a 
judicial order be followed. In the absence of a judicial order 
approving such electronic surveillance, the surveillance shall 
terminate when the information sought is obtained, when the application 
for the order is denied, or after the expiration of 120 hours from the 
time of authorization by the Attorney General, whichever is earliest. 
In the event that such application for approval is denied, or in any 
other case where the electronic surveillance is terminated and no order 
is issued approving the surveillance, no information obtained or 
evidence derived from such surveillance shall be received in evidence 
or otherwise disclosed in any trial, hearing, or other proceeding in or 
before any court, grand jury, department, office, agency, regulatory 
body, legislative committee, or other authority of the United States, a 
State, or political subdivision thereof, and no information concerning 
any United States person acquired from such surveillance shall 
subsequently be used or disclosed in any other manner by Federal 
officers or employees without the consent of such person, except with 
the approval of the Attorney General if the information indicates a 
threat of death or serious bodily harm to any person. A denial of the 
application made under this subsection may be reviewed as provided in 
section 103.''; and
          (7) in subsection (h), as redesignated by paragraph (4), by 
        striking ``assistance in accordance with a court order'' and 
        all that follows and inserting ``assistance--
          ``(1) in accordance with a court order or request for 
        emergency assistance under this Act for electronic surveillance 
        or physical search; or
          ``(2) in response to a certification by the Attorney General 
        or a designee of the Attorney General seeking information, 
        facilities, or technical assistance from such person that does 
        not constitute electronic surveillance.''.

SEC. 6. USE OF INFORMATION.

  Section 106(i) of the Foreign Intelligence Surveillance Act of 1978 
(50 U.S.C. 1806(i)) is amended--
          (1) by striking ``radio communication'' and inserting 
        ``communication''; and
          (2) by striking ``contents indicates'' and inserting 
        ``contents contain significant foreign intelligence information 
        or indicate''.

SEC. 7. AUTHORIZATION AFTER AN ARMED ATTACK.

  (a) Electronic Surveillance.--Section 111 of the Foreign Intelligence 
Surveillance Act of 1978 (50 U.S.C. 1811) is amended by striking ``for 
a period not to exceed'' and all that follows and inserting the 
following: ``for a period not to exceed 60 days following an armed 
attack against the territory of the United States if the President 
submits to the Permanent Select Committee on Intelligence of the House 
of Representatives and the Select Committee on Intelligence of the 
Senate notification of the authorization under this section.''.
  (b) Physical Search.--Section 309 of such Act (50 U.S.C. 1829) is 
amended by striking ``for a period not to exceed'' and all that follows 
and inserting the following: ``for a period not to exceed 60 days 
following an armed attack against the territory of the United States if 
the President submits to the Permanent Select Committee on Intelligence 
of the House of Representatives and the Select Committee on 
Intelligence of the Senate notification of the authorization under this 
section.''.

SEC. 8. AUTHORIZATION OF ELECTRONIC SURVEILLANCE AFTER A TERRORIST 
                    ATTACK.

  The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et 
seq.) is further amended--
          (1) by adding at the end of title I the following new 
        section:
  ``authorization following a terrorist attack upon the united states
  ``Sec. 112.  (a) In General.--Notwithstanding any other provision of 
law, but subject to the provisions of this section, the President, 
acting through the Attorney General, may authorize electronic 
surveillance without an order under this title to acquire foreign 
intelligence information for a period not to exceed 45 days following a 
terrorist attack against the United States if the President submits a 
notification to the congressional intelligence committees and a judge 
having jurisdiction under section 103 that--
          ``(1) the United States has been the subject of a terrorist 
        attack; and
          ``(2) identifies the terrorist organizations or affiliates of 
        terrorist organizations believed to be responsible for the 
        terrorist attack.
  ``(b) Subsequent Certifications.--At the end of the 45-day period 
described in subsection (a), and every 45 days thereafter, the 
President may submit a subsequent certification to the congressional 
intelligence committees and a judge having jurisdiction under section 
103 that the circumstances of the terrorist attack for which the 
President submitted a certification under subsection (a) require the 
President to continue the authorization of electronic surveillance 
under this section for an additional 45 days. The President shall be 
authorized to conduct electronic surveillance under this section for an 
additional 45 days after each such subsequent certification.
  ``(c) Electronic Surveillance of Individuals.--The President, or an 
official designated by the President to authorize electronic 
surveillance, may only conduct electronic surveillance of a person 
under this section if the President or such official determines that--
          ``(1) there is a reasonable belief that such person is 
        communicating with a terrorist organization or an affiliate of 
        a terrorist organization that is reasonably believed to be 
        responsible for the terrorist attack; and
          ``(2) the information obtained from the electronic 
        surveillance may be foreign intelligence information.
  ``(d) Minimization Procedures.--The President may not authorize 
electronic surveillance under this section until the Attorney General 
approves minimization procedures for electronic surveillance conducted 
under this section.
  ``(e) United States Persons.--Notwithstanding subsection (b), the 
President may not authorize electronic surveillance of a United States 
person under this section without an order under this title for a 
period of more than 90 days unless the President, acting through the 
Attorney General, submits a certification to the congressional 
intelligence committees that--
          ``(1) the continued electronic surveillance of the United 
        States person is vital to the national security of the United 
        States;
          ``(2) describes the circumstances that have prevented the 
        Attorney General from obtaining an order under this title for 
        continued surveillance;
          ``(3) describes the reasons for believing the United States 
        person is affiliated with or in communication with a terrorist 
        organization or affiliate of a terrorist organization that is 
        reasonably believed to be responsible for the terrorist attack; 
        and
          ``(4) describes the foreign intelligence information derived 
        from the electronic surveillance conducted under this section.
  ``(f) Use of Information.--Information obtained pursuant to 
electronic surveillance under this subsection may be used to obtain an 
order authorizing subsequent electronic surveillance under this title.
  ``(g) Reports.--Not later than 14 days after the date on which the 
President submits a certification under subsection (a), and every 30 
days thereafter until the President ceases to authorize electronic 
surveillance under subsection (a) or (b), the President shall submit to 
the congressional intelligence committees a report on the electronic 
surveillance conducted under this section, including--
          ``(1) a description of each target of electronic surveillance 
        under this section; and
          ``(2) the basis for believing that each target is in 
        communication with a terrorist organization or an affiliate of 
        a terrorist organization.
  ``(h) Congressional Intelligence Committees Defined.--In this 
section, the term `congressional intelligence committees' means the 
Permanent Select Committee on Intelligence of the House of 
Representatives and the Select Committee on Intelligence of the 
Senate.''; and
          (2) in the table of contents in the first section, by 
        inserting after the item relating to section 111 the following 
        new item:

``Sec. 112. Authorization following a terrorist attack upon the United 
States.''.

SEC. 9. AUTHORIZATION OF ELECTRONIC SURVEILLANCE DUE TO IMMINENT 
                    THREAT.

  The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et 
seq.) is further amended--
          (1) by adding at the end of title I the following new 
        section:
                 ``authorization due to imminent threat
  ``Sec. 113.  (a) In General.--Notwithstanding any other provision of 
law, but subject to the provisions of this section, the President, 
acting through the Attorney General, may authorize electronic 
surveillance without an order under this title to acquire foreign 
intelligence information for a period not to exceed 90 days if the 
President submits to the congressional leadership, the congressional 
intelligence committees, and the Foreign Intelligence Surveillance 
Court a written notification that the President has determined that 
there exists an imminent threat of attack likely to cause death, 
serious injury, or substantial economic damage to the United States. 
Such notification--
          ``(1) shall be submitted as soon as practicable, but in no 
        case later than 5 days after the date on which the President 
        authorizes electronic surveillance under this section;
          ``(2) shall specify the entity responsible for the threat and 
        any affiliates of the entity;
          ``(3) shall state the reason to believe that the threat of 
        imminent attack exists;
          ``(4) shall state the reason the President needs broader 
        authority to conduct electronic surveillance in the United 
        States as a result of the threat of imminent attack;
          ``(5) shall include a description of the foreign intelligence 
        information that will be collected and the means that will be 
        used to collect such foreign intelligence information; and
          ``(6) may be submitted in classified form.
  ``(b) Subsequent Certifications.--At the end of the 90-day period 
described in subsection (a), and every 90 days thereafter, the 
President may submit a subsequent written notification to the 
congressional leadership, the congressional intelligence committees, 
the other relevant committees, and the Foreign Intelligence 
Surveillance Court that the circumstances of the threat for which the 
President submitted a written notification under subsection (a) require 
the President to continue the authorization of electronic surveillance 
under this section for an additional 90 days. The President shall be 
authorized to conduct electronic surveillance under this section for an 
additional 90 days after each such subsequent written notification.
  ``(c) Electronic Surveillance of Individuals.--The President, or an 
official designated by the President to authorize electronic 
surveillance, may only conduct electronic surveillance of a person 
under this section if the President or such official determines that--
          ``(1) there is a reasonable belief that such person is 
        communicating with an entity or an affiliate of an entity that 
        is reasonably believed to be responsible for imminent threat of 
        attack; and
          ``(2) the information obtained from the electronic 
        surveillance may be foreign intelligence information.
  ``(d) Minimization Procedures.--The President may not authorize 
electronic surveillance under this section until the Attorney General 
approves minimization procedures for electronic surveillance conducted 
under this section.
  ``(e) United States Persons.--Notwithstanding subsections (a) and 
(b), the President may not authorize electronic surveillance of a 
United States person under this section without an order under this 
title for a period of more than 60 days unless the President, acting 
through the Attorney General, submits a certification to the 
congressional intelligence committees that--
          ``(1) the continued electronic surveillance of the United 
        States person is vital to the national security of the United 
        States;
          ``(2) describes the circumstances that have prevented the 
        Attorney General from obtaining an order under this title for 
        continued surveillance;
          ``(3) describes the reasons for believing the United States 
        person is affiliated with or in communication with an entity or 
        an affiliate of an entity that is reasonably believed to be 
        responsible for imminent threat of attack; and
          ``(4) describes the foreign intelligence information derived 
        from the electronic surveillance conducted under this section.
  ``(f) Use of Information.--Information obtained pursuant to 
electronic surveillance under this subsection may be used to obtain an 
order authorizing subsequent electronic surveillance under this title.
  ``(g) Definitions.--In this section:
          ``(1) Congressional intelligence committees.--The term 
        `congressional intelligence committees' means the Permanent 
        Select Committee on Intelligence of the House of 
        Representatives and the Select Committee on Intelligence of the 
        Senate.
          ``(2) Congressional leadership.--The term `congressional 
        leadership' means the Speaker and minority leader of the House 
        of Representatives and the majority leader and minority leader 
        of the Senate.
          ``(3) Foreign intelligence surveillance court.--The term 
        `Foreign Intelligence Surveillance Court' means the court 
        established under section 103(a).
          ``(4) Other relevant committees.--The term `other relevant 
        committees' means the Committees on Appropriations, the 
        Committees on Armed Services, and the Committees on the 
        Judiciary of the House of Representatives and the Senate.''; 
        and
          (2) in the table of contents in the first section, by 
        inserting after the item relating to section 112, as added by 
        section 8(2), the following new item:

``Sec. 113. Authorization due to imminent threat.''.

SEC. 10. CONGRESSIONAL OVERSIGHT.

  (a) Electronic Surveillance Under FISA.--Section 108(a) of the 
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1808(a)) is 
amended--
          (1) in paragraph (2)--
                  (A) in subparagraph (B), by striking ``and'' at the 
                end;
                  (B) in subparagraph (C), by striking the period and 
                inserting ``; and''; and
                  (C) by adding at the end the following new 
                subparagraph:
                  ``(D) the authority under which the electronic 
                surveillance is conducted.''; and
          (2) by adding at the end the following new paragraph:
          ``(3) Each report submitted under this subsection shall 
        include reports on electronic surveillance conducted without a 
        court order.''.
  (b) Intelligence Activities.--The National Security Act of 1947 (50 
U.S.C. 401 et seq.) is amended--
          (1) in section 501 (50 U.S.C. 413)--
                  (A) by redesignating subsection (f) as subsection 
                (g); and
                  (B) by inserting after subsection (e) the following 
                new subsection:
  ``(f) The Chair of each of the congressional intelligence committees, 
in consultation with the ranking member of the committee for which the 
person is Chair, may inform--
          ``(1) on a bipartisan basis, all members or any individual 
        members of such committee, and
          ``(2) any essential staff of such committee,
of a report submitted under subsection (a)(1) or subsection (b) as such 
Chair considers necessary.'';
          (2) in section 502 (50 U.S.C. 414), by adding at the end the 
        following new subsection:
  ``(d) Informing of Committee Members.--The Chair of each of the 
congressional intelligence committees, in consultation with the ranking 
member of the committee for which the person is Chair, may inform--
          ``(1) on a bipartisan basis, all members or any individual 
        members of such committee, and
          ``(2) any essential staff of such committee,
of a report submitted under subsection (a) as such Chair considers 
necessary.''; and
          (3) in section 503 (50 U.S.C. 415), by adding at the end the 
        following new subsection:
  ``(g) The Chair of each of the congressional intelligence committees, 
in consultation with the ranking member of the committee for which the 
person is Chair, may inform--
          ``(1) on a bipartisan basis, all members or any individual 
        members of such committee, and
          ``(2) any essential staff of such committee,
of a report submitted under subsection (b), (c), or (d) as such Chair 
considers necessary.''.

SEC. 11. TECHNICAL AND CONFORMING AMENDMENTS.

  The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et 
seq.) is further amended--
          (1) in section 102(a)(3)(A), by striking ``sections 101(h)(4) 
        and'' and inserting ``section'';
          (2) in section 105(a)(4), as redesignated by section 
        5(1)(B)--
                  (A) by striking ``104(a)(7)(E)'' and inserting 
                ``104(a)(6)(D)''; and
                  (B) by striking ``104(d)'' and inserting ``104(c)'';
          (3) in section 106--
                  (A) in subsection (j) in the matter preceding 
                paragraph (1), by striking ``105(e)'' and inserting 
                ``105(d)''; and
                  (B) in subsection (k)(2), by striking 
                ``104(a)(7)(B)'' and inserting ``104(a)(6)(B)''; and
          (4) in section 108(a)(2)(C), by striking ``105(f)'' and 
        inserting ``105(e)''.

                                Purpose

    The purpose of H.R. 5825 is to modernize the Foreign 
Intelligence Surveillance Act, to strengthen oversight of the 
executive branch concerning electronic surveillance and 
intelligence, and to provide clear electronic surveillance 
authority to the nation's intelligence agencies in the event of 
a terrorist attack, armed attack, or imminent threat against 
the United States.

                     Committee Statement and Views

A. Background and need for legislation

    The Foreign Intelligence Surveillance Act (``FISA'') 
provides the legal framework for collecting specified types of 
foreign intelligence information within the United States. The 
current legal and technical framework relative to FISA was 
constructed in 1978. The complexity, variety and means of 
communications technology has since mushroomed exponentially 
and globally--but the structure of our surveillance laws has 
remained hidebound around the technology of generations-old 
wired telephones.
    The Committee received testimony that the current 
provisions of FISA are ``dangerously obsolete''. This bill 
modernizes the law in a number of critical respects. It updates 
FISA to make it technology neutral, and neutral as to the means 
of communication. It streamlines the surveillance approval 
process to keep the focus on gaining knowledge of those who 
would do harm to the United States while protecting the civil 
liberties of average Americans. It gives our intelligence 
personnel the necessary tools to help detect and prevent acts 
of terrorism, and to respond to armed attacks and terrorist 
attacks. As reported, the bill also ensures that adequate 
authority exists to conduct necessary electronic surveillance 
when a threat of imminent attack exists.
    H.R. 5825 also enhances congressional and judicial 
oversight of U.S. government electronic surveillance activities 
to ensure that activities conducted under both FISA and the 
authorities provided in the bill will be utilized by the 
President only with the knowledge and coordination of the other 
branches of government. More broadly than just FISA, the bill 
as reported also addresses fundamental separation of powers 
concerns expressed by members of the Committee through 
amendments to the National Security Act by providing express 
authority for the Chairmen of the congressional intelligence 
Committees to broaden reporting on sensitive issues to 
additional members of the Committee at his or her discretion on 
a bipartisan basis in the necessary circumstances.
    This bill enhances the overall authorities of our nation to 
act as a whole to protect itself in times of war and heightened 
threat of attack--both terrorist and otherwise.

B. Legislation

    The bill contains provisions relating to modernization of 
the Foreign Intelligence Surveillance Act, additional 
authorization to conduct limited electronic surveillance in 
specifically defined emergency circumstances with enhanced 
reporting to Congress and the Judiciary, and to enhance 
congressional oversight of both electronic surveillance and 
other intelligence and intelligence-related activities of the 
United States.
            1. FISA modernization
    Sections two through six of the bill, further detailed in 
the following section-by-section analysis, contain provisions 
intended to modernize the Foreign Intelligence Surveillance 
Act. The bill updates the definition of electronic surveillance 
contained in the statute to make it technology neutral and to 
ensure that the FISA process is directed to circumstances where 
a reasonable expectation of privacy exists and a warrant would 
be required for law enforcement purposes. The bill also would 
modernize and simplify the process of getting a FISA warrant in 
order to focus resources on protecting the civil liberties of 
Americans.
            2. Enhanced authorities
    Sections seven through nine of the reported bill provide 
clear authority to United States intelligence agencies in the 
event of an armed attack, terrorist attack, or threat of 
imminent attack on the United States. These provisions include 
limits on the type of surveillance that may be conducted, and 
provide for enhanced accountability.
    Section seven expands the authority in current law to 
conduct electronic surveillance following an armed attack 
against the United States to a period of sixty days, and adds a 
requirement that the President submit notification of any 
authorization under this authority to the congressional 
intelligence committees.
    Section eight provides authority to conduct specified 
electronic surveillance after a terrorist attack on the United 
States, on notification to the congressional intelligence 
committees and a judge of the FISA court. The authority is 
limited to renewable 45 day periods, and the authorization is 
limited to electronic surveillance of persons when the 
President determines there is a reasonable belief that a person 
is communicating with a terrorist organization or an affiliate 
of a terrorist organization that is reasonably believed to be 
responsible for the terrorist attack, and that the information 
obtained may be foreign intelligence information. Additional 
constraints are provided with respect to electronic 
surveillance of United States persons.
    Section nine provides authority to conduct specified 
electronic surveillance when the President has determined that 
there exists an imminent threat of attack likely to cause 
death, serious injury, or substantial economic damage to the 
United States, on notification to the congressional 
intelligence committees and the FISA court. The authority is 
limited to renewable 90 day periods, and additional 
congressional committees must be notified if the authority is 
renewed. The authorization is limited to electronic 
surveillance of persons when the President determines there is 
a reasonable belief that a person is communicating with the 
entity or an affiliate reasonably believed to be responsible 
for the imminent threat of attack, and that the information 
obtained may be foreign intelligence information. Additional 
constraints are provided with respect to electronic 
surveillance of United States persons.
            3. Enhanced Congressional oversight
    The bill enhances congressional oversight not only of 
electronic surveillance, but also more generally of 
intelligence and intelligence-related activities of the United 
States Government. Each of the enhanced authorities provided in 
the bill includes specific and detailed requirements for 
reporting to Congress. In addition, Section ten of the bill 
requires the FISA semi-annual report to include information 
regarding the authority under which electronic surveillance is 
conducted, and provides for reporting on any electronic 
surveillance conducted without a court order.
    The bill also makes significant amendments to the National 
Security Act of 1947 that would authorize the Chair of each of 
the congressional intelligence committees to inform any or all 
other members and essential staff of each Committee of 
reporting of intelligence activities received under that Act, 
on a bipartisan basis, as such Chair considers necessary in his 
or her discretion.

                           Committee Hearings

    The Committee held two public hearings with respect to 
modernization of the Foreign Intelligence Surveillance Act. On 
July 19, 2006, the Committee received testimony from Judge 
Richard A. Posner; Mr. Kim Taipale of the Center for Advanced 
Studies in Science and Technology Policy; Mr. Michael Greco of 
the American Bar Association; and Mr. James Dempsey of the 
Center for Democracy and Technology. On July 27, 2006, the 
Committee received testimony from Representative Heather Wilson 
regarding H.R. 5825; from Representative John Conyers regarding 
H.R. 5371; and from Representative Adam Schiff and 
Representative Jeff Flake regarding H.R. 4976.

               Committee Consideration and Rollcall Votes

    On September 20, 2006, the Committee met in open session 
and ordered the bill H.R. 5825 favorably reported, as amended.
    Ms. Wilson offered an amendment in the nature of a 
substitute to H.R. 5825, which was considered as base text by 
unanimous consent. The contents of the amendment in the nature 
of a substitute are described in the Section-by-Section 
analysis and the Explanation of Amendment. The Committee 
considered the following amendments:
    Ms. Harman offered an amendment in the nature of a 
substitute containing the text of H.R. 5371, the ``LISTEN 
Act''. It was not agreed to by a record vote of 9 ayes to 10 
noes:
          Voting aye: Ms. Harman, Mr. Hastings, Mr. Reyes, Mr. 
        Boswell, Mr. Cramer, Ms. Eshoo, Mr. Holt, Mr. 
        Ruppersberger, Mr. Tierney.
          Voting no: Mr. Hoekstra (Chairman), Mr. LaHood, Mr. 
        Everett, Mr. Gallegly, Ms. Wilson, Ms. Davis, Mr. 
        Thornberry, Mr. McHugh, Mr. Tiahrt, Mr. Renzi.
    Ms. Eshoo offered an amendment making modifications to the 
definition of electronic surveillance. It was not agreed to by 
a record vote of 9 ayes to 10 noes:
          Voting aye: Ms. Harman, Mr. Hastings, Mr. Reyes, Mr. 
        Boswell, Mr. Cramer, Ms. Eshoo, Mr. Holt, Mr. 
        Ruppersberger, Mr. Tierney.
          Voting no: Mr. Hoekstra (Chairman), Mr. LaHood, Mr. 
        Everett, Mr. Gallegly, Ms. Wilson, Ms. Davis, Mr. 
        Thornberry, Mr. McHugh, Mr. Tiahrt, Mr. Renzi.
    Mr. Hastings offered an amendment relating to acquisition 
of communications among foreign parties. It was not agreed to 
by a record vote of 8 ayes to 11 noes:
          Voting aye: Ms. Harman, Mr. Hastings, Mr. Reyes, Mr. 
        Boswell, Mr. Cramer, Mr. Holt, Mr. Ruppersberger, Mr. 
        Tierney.
          Voting no: Mr. Hoekstra (Chairman), Mr. LaHood, Mr. 
        Everett, Mr. Gallegly, Ms. Wilson, Ms. Davis, Mr. 
        Thornberry, Mr. McHugh, Mr. Tiahrt, Mr. Renzi, Mr. 
        Issa.
    Mr. Holt offered an amendment inserting a finding that in 
passing the Foreign Intelligence Surveillance Act, Congress 
expressly stated that FISA and specified provisions of title 
18, United States Code, were the exclusive means by which 
surveillance can be conducted in the United States. It was not 
agreed to by a record vote of 8 ayes to 9 noes:
          Voting aye: Ms. Harman, Mr. Hastings, Mr. Reyes, Mr. 
        Boswell, Mr. Cramer, Mr. Holt, Mr. Ruppersberger, Mr. 
        Tierney.
          Voting no: Mr. Hoekstra (Chairman), Mr. LaHood, Mr. 
        Everett, Ms. Wilson, Ms. Davis, Mr. Thornberry, Mr. 
        McHugh, Mr. Tiahrt, Mr. Renzi.
    Mr. Reyes offered an amendment inserting a finding that the 
Authorization for Use of Military Force (Public Law 107-40) 
does not constitute legal authorization for electronic 
surveillance not authorized by specified provisions of Title 
18, United States Code, or the Foreign Intelligence 
Surveillance Act. It was not agreed to by a record vote of 8 
ayes to 9 noes:
          Voting aye: Ms. Harman, Mr. Hastings, Mr. Reyes, Mr. 
        Boswell, Mr. Cramer, Mr. Holt, Mr. Ruppersberger, Mr. 
        Tierney.
          Voting no: Mr. Hoekstra (Chairman), Mr. LaHood, Mr. 
        Everett, Ms. Wilson, Ms. Davis, Mr. Thornberry, Mr. 
        McHugh, Mr. Tiahrt, Mr. Renzi.
    Mr. Holt offered an amendment inserting a finding that in 
passing the Foreign Intelligence Surveillance Act, Congress 
expressly stated that FISA and specified provisions of title 
18, United States Code, were the exclusive means by which 
electronic surveillance can be conducted in the United States. 
It was not agreed to by a record vote of 8 ayes to 9 noes:
          Voting aye: Ms. Harman, Mr. Hastings, Mr. Reyes, Mr. 
        Boswell, Mr. Cramer, Mr. Holt, Mr. Ruppersberger, Mr. 
        Tierney.
          Voting no: Mr. Hoekstra (Chairman), Mr. LaHood, Mr. 
        Everett, Ms. Wilson, Ms. Davis, Mr. Thornberry, Mr. 
        McHugh, Mr. Tiahrt, Mr. Renzi
    The Committee then adopted the amendment in the nature of a 
substitute by a record vote of 9 ayes to 8 noes:
          Voting aye: Mr. Hoekstra (Chairman), Mr. LaHood, Mr. 
        Everett, Ms. Wilson, Ms. Davis, Mr. Thornberry, Mr. 
        McHugh, Mr. Tiahrt, Mr. Renzi.
          Voting no: Ms. Harman, Mr. Hastings, Mr. Reyes, Mr. 
        Boswell, Mr. Cramer, Mr. Holt, Mr. Ruppersberger, Mr. 
        Tierney
    By voice vote, the Committee adopted a motion by the 
Chairman to favorably report the bill H.R. 5825 to the House, 
as amended.

      Section-by-Section Analysis and Explanation of the Amendment

    The provisions of the bill are as follows:

Section 1--Short title

    Section 1 contains the short title for the bill.

Section 2--FISA definitions

    Section 2 would update the definition of electronic 
surveillance. This change would update the law to take into 
account significant changes in technology since the enactment 
of the Foreign Intelligence Surveillance Act (``FISA''). This 
section would remove the current distinction between treatment 
of ``wire'' and ``radio'' communications, and use a technology-
neutral definition of electronic surveillance. This section 
also provides protection for persons with a reasonable 
expectation of privacy if both the sender and all intended 
recipients are located within the United States.

Section 3--Authorization for electronic surveillance for foreign 
        intelligence purposes

    Section 3 would modernize the law by including providers of 
any electronic communication service, landlord, custodian, or 
other person who has access to electronic communications. This 
section updates the current ``common carrier'' definition.

Sections 4 and 5--Applications for court orders/issuance of an order

    Sections 4 and 5 would simplify the process for developing 
information to get approval of a FISA warrant. This section 
would reduce the volume of material required for a FISA 
application, including minimizing the detailed description of 
the nature of foreign intelligence information sought and the 
detailed descriptions of the intended method of collection. The 
FISA application should focus on probable cause for a warrant 
rather than technical details about the means of collection. 
Current protections and minimization procedures will remain in 
place to protect unintended targets. In the event of an 
emergency employment of electronic surveillance, the Attorney 
General would have up to five days to file for an emergency 
application.

Section 6--Use of information

    Section 6 clarifies and makes conforming changes with 
respect to previous sections and FISA.

Section 7--Authorization after an armed attack

    Section 7 updates the current FISA provisions for 
electronic surveillance to provide clear authority for U.S. 
intelligence agencies to conduct electronic surveillance in the 
event of an armed attack on the United States. The President, 
through the Attorney General, is authorized to collect 
electronic surveillance without a court order to acquire 
foreign intelligence information for a period not to exceed 60 
days following an armed attack against the territory of the 
United States. The current statute allows for 15 days after a 
declaration of war by the Congress. Notification to the House 
Permanent Select Committee on Intelligence (``HPSCI'') and 
Senate Select Committee on Intelligence (``SSCI'') is required.

Section 8--Authorization of electronic surveillance after a terrorist 
        attack

    Section 8 governs electronic surveillance after a terrorist 
attack. The President, acting through the Attorney General, 
would have the authority to authorize electronic surveillance 
to acquire foreign intelligence information without an order 
when the terrorist organizations and their affiliates 
responsible for the attack have been identified and notified to 
the Congress and the FISA court, when there is a reasonable 
belief that the target is communicating with a terrorist 
organization, for a period not to exceed 45 days following a 
terrorist attack against the U.S. Notification to the HPSCI and 
SSCI and to the FISA court is required. The President may 
submit a subsequent certification to Congress which would allow 
for an additional 45 days of electronic surveillance.

Section 9--Authorization of electronic surveillance after threat of 
        imminent attack

    Section 9 allows the President to authorize electronic 
surveillance when there exists an imminent threat of attack 
likely to cause death, serious injury, or substantial economic 
damage to the United States when the entities and their 
affiliates responsible for the threat have been identified and 
notified to the Congress and the FISA court, when there is a 
reasonable belief that the target is communicating with those 
entities and affiliates, for a period not to exceed 90 days. 
The President must submit notification to Congress as soon as 
practicable, but not later than five days after the 
authorization. The President may submit subsequent 
certifications to Congress which would allow for additional 90 
day periods of surveillance, with notification to additional 
congressional committees.

Section 10--Congressional oversight

    Section 10 of the Act would strengthen congressional 
oversight by amending current law to provide authority to the 
Chairman of each of the Intelligence Committees to notify all 
members or any individual members of the Committees, on a 
bipartisan basis and as the Chair considers necessary, of 
reporting of intelligence activities received under the 
National Security Act.

Section 11--Technical and conforming amendments

    Section 11 makes technical clarifications and conforming 
amendments to FISA.

                 Oversight Findings and Recommendations

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

                General Performance Goals and Objectives

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

                   Constitutional Authority Statement

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

                       Unfunded Mandate Statement

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

                Applicability to the Legislative Branch

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

                           Earmarks Statement

    The reported bill contains no earmarks, as defined in H. 
Res. 1000.

     Budget Authority and Congressional Budget Office Cost Estimate

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the House of Representatives and section 308(a) of the 
Congressional Budget Act of 1974 and with respect to 
requirements of 3(c)(3) of rule XIII of the House of 
Representatives and section 402 of the Congressional Budget Act 
of 1974, the Committee has received the following cost estimate 
for H.R. 5825 from the Director of the Congressional Budget 
Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                Washington, DC, September 25, 2006.
Hon. Peter Hoekstra,
Chairman, Permanent Select Committee on Intelligence,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 5825, the 
Electronic Surveillance Modernization Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Jason 
Wheelock.
            Sincerely,
                                          Donald B. Marron,
                                                   Acting Director.
    Enclosure.

H.R. 5825--Electronic Surveillance Modernization Act

    Summary: H.R. 5825 would modify the rules and procedures 
the government must follow to use electronic surveillance 
programs in the investigation of international terrorism. The 
bill would amend the definition of electronic surveillance 
under the Foreign Intelligence Surveillance Act (FISA) to 
remove the current distinction between treatment of wire and 
radio communications, and to focus FISA protections on domestic 
communications.
    The bill also would expand the ability of the government to 
conduct electronic surveillance without warrant when:
           The target of the surveillance is an agent 
        of a foreign power;
           There has been an armed attack against the 
        territory of the United States;
           There has been a terrorist attack against 
        the United States; or
           There exists an imminent threat of attack 
        likely of cause death, serious injury, or substantial 
        economic damage to the United States.
    H.R. 5825 would also authorize the Attorney General, after 
obtaining the certification required under the bill, to require 
any U.S. citizen, legal alien, or organization with access to 
electronic communications to provide the government with all 
assistance necessary to conduct electronic surveillance and to 
acquire foreign intelligence information. Under current law, 
the Attorney General may direct a ``common carrier'' to provide 
such assistance with electronic surveillance. Thus, 
implementing H.R. 5825 could expand the number of entities that 
may be required to provide assistance to the government when it 
conducts electronic surveillance.
    The bill would also make a number of changes that could 
reduce the volume of material required for a FISA application, 
including minimizing the detailed descriptions of both the 
nature of the foreign intelligence information sought and the 
intended method of collection.
    CBO has no basis for predicting how the volume or type of 
surveillance would be changed if H.R. 5825 were enacted. 
Furthermore, information regarding surveillance techniques and 
their associated costs is classified. For these reasons, CBO 
cannot estimate the impact on the federal budget of 
implementing H.R. 5825.
    Section 4 of the Unfunded Mandates Reform Act (UMRA) 
excludes from the application of that act any legislative 
provisions that are necessary for national security. CBO has 
determined that section 9 of this bill, which would authorize 
certain electronic surveillance without a warrant due to an 
imminent threat of attack, falls under that exclusion; we have 
not reviewed it for intergovernmental or private-sector 
mandates.
    One of the other provisions of H.R. 5825 contains an 
intergovernmental mandate, but CBO estimates that costs to 
state and local governments would fall well below the annual 
threshold established in UMRA ($64 million in 2006, adjusted 
annually for inflation).
    H.R. 5825 contains a private-sector mandate, as defined in 
UMRA, because it would require certain entities to assist the 
government with electronic surveillance. Because CBO has no 
information about the prevalence of electronic surveillance and 
the cost of compliance for entities assisting the government 
with electronic surveillance, CBO has no basis for estimating 
the costs of the mandate or whether those costs would exceed 
the annual threshold established by UMRA for private-sector 
mandates ($128 million in 2006, adjusted annually for 
inflation).
    Estimated cost to the Federal Government: CBO cannot 
estimate the budgetary impact of implementing H.R. 5825 because 
we cannot predict how the volume or type of surveillance would 
change under this legislation. Moreover, information regarding 
surveillance technologies and their associated costs are 
classified.
    Any changes in federal spending under the bill would be 
subject to the appropriation of the necessary funds. Enacting 
H.R. 5825 would not affect direct spending or revenues.
    Estimated impact on state, local, and tribal governments: 
Section 4 of UMRA excludes from the application of that act any 
legislative provisions that are necessary for national 
security. CBO has determined that section 9 of the bill, which 
authorizes certain electronic surveillance without a warrant 
due to an imminent threat of attack, falls under that 
exclusion; we have not reviewed it for intergovernmental 
mandates.
    One of the other provisions of the bill contains an 
intergovernmental mandate, as defined in UMRA, because it would 
allow federal law enforcement officers to direct public 
institutions such as libraries to provide information. Because 
data about the number of public entities currently complying 
with similar requests and the costs of that compliance are 
classified, CBO cannot estimate the total costs state and local 
governments would incur to comply with this mandate. Based on 
information from a recent survey of public libraries, however, 
CBO estimates that the number of requests would probably be 
small and that the total costs to those entities would be well 
below the annual threshold established in UMRA ($64 million in 
2006, adjusted annually for inflation).
    Estimated impacts on the private sector: Section 4 of UMRA 
excludes from the application of that act any legislative 
provisions that are necessary for national security. CBO has 
determined that section 9 of the bill, which authorizes certain 
electronic surveillance without a warrant due to imminent 
threat of attack, falls under that exclusion and has not 
reviewed it for private-sector mandates.
    H.R. 5825 contains a private-sector mandate, as defined in 
UMRA, because it would require certain entities to assist the 
government with electronic surveillance. CBO has no basis for 
estimating the costs of the mandate or whether those costs 
would exceed the annual threshold established by UMRA for 
private-sector mandates ($128 million in 2006, adjusted 
annually for inflation).
    H.R. 5825 would authorize the Attorney General, after 
obtaining the certification required under the bill, to direct 
a person to immediately provide the government with all 
information, facilities, and assistance necessary to conduct 
electronic surveillance and to acquire foreign intelligence. 
Under current law, the Attorney General may direct a ``common 
carrier'' to provide such assistance with electronic 
surveillance. This bill would expand the scope of entities that 
must comply with the government's orders in such cases. Because 
CBO has no information about how often such entities would be 
directed to provide assistance or the costs associated with 
providing assistance, CBO has no basis for estimating the costs 
of this mandate. The bill also would authorize the government 
to compensate, at the prevailing rate, a person for providing 
such information, facilities, or assistance.
    Previous CBO estimate: On September 25, 2006, CBO 
transmitted a cost estimate for H.R. 5825, as ordered reported 
by the House Committee on the Judiciary on September 20, 2006. 
The language of the two versions of the bill is similar. CBO 
cannot estimate the federal budgetary impact of implementing 
either version of H.R. 5825 because we cannot predict how the 
volume or type of surveillance would change under either 
version.
    The House Judiciary version includes an intergovernmental 
and private-sector mandate that is not included in the 
Intelligence Committee's bill. That provision would provide 
protection from a cause of action for any person providing 
information, facilities, or assistance as well as conducting 
physical searches in accordance with a directive from the 
Attorney General under the bill.
    Estimate prepared by: Federal Costs: Jason Wheelock. Impact 
on State, Local, and Tribal Governments: Melissa Merrell. 
Impact on the Private Sector: Victoria Liu.
    Estimate approved by: Robert A. Sunshine, Assistant 
Director for Budget Analysis.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

             FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978

     AN ACT To authorize electronic surveillance to obtain foreign 
                       intelligence information.

  Be it enacted by the Senate and House of Representatives of 
the United States of America in Congress assembled, That this 
Act may be cited as the ``Foreign Intelligence Surveillance Act 
of 1978''.

                            TABLE OF CONTENTS

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

Sec. 101.  Definitions.
     * * * * * * *
Sec. 112. Authorization following a terrorist attack upon the United 
          States.
Sec. 113. Authorization due to imminent threat.

           *       *       *       *       *       *       *

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

                              DEFINITIONS

  Sec. 101. As used in this title:
          (a) * * *
  (b) ``Agent of a foreign power'' means--
          (1) any person other than a United States person, 
        who--
                  (A) * * *
                  (B) acts for or on behalf of a foreign power 
                which engages in clandestine intelligence 
                activities in the United States contrary to the 
                interests of the United States, when the 
                circumstances of such person's presence in the 
                United States indicate that such person may 
                engage in such activities in the United States, 
                or when such person knowingly aids or abets any 
                person in the conduct of such activities or 
                knowingly conspires with any person to engage 
                in such activities; [or]

           *       *       *       *       *       *       *

                  (D) possesses or is reasonably expected to 
                transmit or receive foreign intelligence 
                information while in the United States; or

           *       *       *       *       *       *       *

  [(f) ``Electronic surveillance'' means--
          [(1) the acquisition by an electronic, mechanical, or 
        other surveillance device of the contents of any wire 
        or radio communications sent by or intended to be 
        received by a particular, known United States person 
        who is in the United States, if the contents are 
        acquired by intentionally targeting that United States 
        person, under circumstances in which a person has a 
        reasonable expectation of privacy and a warrant would 
        be required for law enforcement purposes;
          [(2) the acquisition by an electronic, mechanical, or 
        other surveillance device of the contents of any wire 
        communication to or from a person in the United States, 
        without the consent of any party thereto, if such 
        acquisition occurs in the United States, but does not 
        include the acquisition of those communications of 
        computer trespassers that would be permissible under 
        section 2511(2)(i) of title 18, United States Code;
          [(3) the intentional acquisition by an electronic, 
        mechanical, or other surveillance device of the 
        contents of any radio communication, under 
        circumstances in which a person has a reasonable 
        expectation of privacy and a warrant would be required 
        for law enforcement purposes, and if both the sender 
        and all intended recipients are located within the 
        United States; or
          [(4) the installation or use of an electronic, 
        mechanical, or other surveillance device in the United 
        States for monitoring to acquire information, other 
        than from a wire or radio communication, under 
        circumstances in which a person has a reasonable 
        expectation of privacy and a warrant would be required 
        for law enforcement purposes.]
  (f) ``Electronic surveillance'' means--
          (1) the installation or use of a surveillance device 
        for the intentional collection of information relating 
        to a person who is reasonably believed to be in the 
        United States by intentionally targeting that person, 
        under circumstances in which the person has a 
        reasonable expectation of privacy and a warrant would 
        be required for law enforcement purposes; or
          (2) the intentional acquisition of the contents of 
        any communication, without the consent of a party to 
        the communication, under circumstances in which a 
        person has a reasonable expectation of privacy and a 
        warrant would be required for law enforcement purposes, 
        if both the sender and all intended recipients are 
        located within the United States.

           *       *       *       *       *       *       *

  (h) ``Minimization procedures'', with respect to electronic 
surveillance, means--
          (1) * * *
          (2) procedures that require that nonpublicly 
        available information, which is not foreign 
        intelligence information, as defined in subsection 
        (e)(1), shall not be disseminated in a manner that 
        identifies any United States person, without such 
        person's consent, unless such person's identity is 
        necessary to understand foreign intelligence 
        information or assess its importance; and
          (3) notwithstanding paragraphs (1) and (2), 
        procedures that allow for the retention and 
        dissemination of information that is evidence of a 
        crime which has been, is being, or is about to be 
        committed and that is to be retained or disseminated 
        for law enforcement purposes[; and].
          [(4) notwithstanding paragraphs (1), (2), and (3), 
        with respect to any electronic surveillance approved 
        pursuant to section 102(a), procedures that require 
        that no contents of any communication to which a United 
        States person is a party shall be disclosed, 
        disseminated, or used for any purpose or retained for 
        longer than 72 hours unless a court order under section 
        105 is obtained or unless the Attorney General 
        determines that the information indicates a threat of 
        death or serious bodily harm to any person.]

           *       *       *       *       *       *       *

  [(l) ``Wire communication'' means any communications while it 
is being carried by a wire, cable, or other like connection 
furnished or operated by any person engaged as a common carrier 
in providing or operating such facilities for the transmission 
of interstate or foreign communications.]
  (l) ``Surveillance device'' is a device that allows 
surveillance by the Federal Government, but excludes any device 
that extracts or analyzes information from data that has 
already been acquired by the Federal Government by lawful 
means.

           *       *       *       *       *       *       *

  AUTHORIZATION FOR ELECTRONIC SURVEILLANCE FOR FOREIGN INTELLIGENCE 
                                PURPOSES

    Sec. 102. (a)(1) Notwithstanding any other law, the 
President, through the Attorney General, may authorize 
electronic surveillance without a court order under this title 
to acquire foreign intelligence information for periods of up 
to one year if the Attorney General certifies in writing under 
oath that--
          (A) the electronic surveillance is solely directed 
        at--
                  (i) the acquisition of the contents of 
                communications [transmitted by means of 
                communications used exclusively between or 
                among foreign powers, as defined in section 
                101(a) (1), (2), or (3); or] of a foreign 
                power, as defined in paragraph (1), (2), or (3) 
                of section 101(a), or an agent of a foreign 
                power, as defined in section 101(b)(1); or
                  (ii) the acquisition of technical 
                intelligence, other than the spoken 
                communications of individuals, from property or 
                premises under the open and exclusive control 
                of a foreign power, as defined in section 
                101(a) (1), (2), or (3); and
          [(B) there is no substantial likelihood that the 
        surveillance will acquire the contents of any 
        communications to which a United States person is a 
        party; and]
          [(C)] (D) the proposed minimization procedures with 
        respect to such surveillance meet the definition of 
        minimization procedures under section 101(h); and

           *       *       *       *       *       *       *

  (3) The Attorney General shall immediately transmit under 
seal to the court established under section 103(a) a copy of 
his certification. Such certification shall be maintained under 
security measures established by the Chief Justice with the 
concurrence of the Attorney General, in consultation with the 
Director of National Intelligence, and shall remain sealed 
unless--
          (A) an application for a court order with respect to 
        the surveillance is made under [sections 101(h)(4) and] 
        section 104; or

           *       *       *       *       *       *       *

  [(4) With respect to electronic surveillance authorized by 
this subsection, the Attorney General may direct a specified 
communication common carrier to--
          [(A) furnish all information, facilities, or 
        technical assistance necessary to accomplish the 
        electronic surveillance in such a manner as will 
        protect its secrecy and produce a minimum of 
        interference with the services that such carrier is 
        providing its customers; and
          [(B) maintain under security procedures approved by 
        the Attorney General and the Director of National 
        Intelligence any records concerning the surveillance or 
        the aid furnished which such carrier wishes to retain.
The Government shall compensate, at the prevailing rate, such 
carrier for furnishing such aid.]
  [(b) Applications for a court order under this title are 
authorized if the President has, by written authorization, 
empowered the Attorney General to approve applications to the 
court having jurisdiction under section 103, and a judge to 
whom an application is made may, notwithstanding any other law, 
grant an order, in conformity with section 105, approving 
electronic surveillance of a foreign power or an agent of a 
foreign power for the purpose of obtaining foreign intelligence 
information, except that the court shall not have jurisdiction 
to grant any order approving electronic surveillance directed 
solely as described in paragraph (1)(A) of subsection (a) 
unless such surveillance may involve the acquisition of 
communications of any United States person.]
  (b)(1) The Attorney General may require, by written 
certification, any person with authorized access to electronic 
communications or equipment used to transmit or store 
electronic communications to provide information, facilities, 
or technical assistance--
          (A) necessary to accomplish electronic surveillance 
        authorized under subsection (a); or
          (B) to an official designated by the President for a 
        period of up to one year, provided the Attorney General 
        certifies in writing, under oath, that the provision of 
        the information, facilities, or technical assistance 
        does not constitute electronic surveillance.
  (2) The Attorney General may require a person providing 
information, facilities, or technical assistance under 
paragraph (1) to--
          (A) provide the information, facilities, or technical 
        assistance in such a manner as will protect the secrecy 
        of the provision of such information, facilities, or 
        technical assistance and produce a minimum of 
        interference with the services that such person is 
        providing the customers of such person; and
          (B) maintain under security procedures approved by 
        the Attorney General and the Director of National 
        Intelligence any records concerning such electronic 
        surveillance or the information, facilities, or 
        technical assistance provided which such person wishes 
        to retain.
  (3) The Government shall compensate, at the prevailing rate, 
a person for providing information, facilities, or technical 
assistance pursuant to paragraph (1).
  (c) Notwithstanding any other provision of law, the President 
may designate an official who may authorize electronic 
surveillance of international radio communications of a 
diplomat or diplomatic mission or post of the government of a 
foreign country in the United States in accordance with 
procedures approved by the Attorney General.

           *       *       *       *       *       *       *

                        APPLICATION FOR AN ORDER

    Sec. 104. (a) Each application for an order approving 
electronic surveillance under this title shall be made by a 
Federal officer in writing upon oath or affirmation to a judge 
having jurisdiction under section 103. Each application shall 
require the approval of the Attorney General based upon his 
finding that it satisfies the criteria and requirements of such 
application as set forth in this title. It shall include--
          (1) * * *

           *       *       *       *       *       *       *

          [(6) a detailed description of the nature of the 
        information sought and the type of communications or 
        activities to be subjected to the surveillance;]
          [(7)] (6) a certification or certifications by the 
        Assistant to the President for National Security 
        Affairs or an executive branch official [or officials 
        designated by the President from among those executive 
        officers employed in the area of national security or 
        defense and appointed by the President with the advice 
        and consent of the Senate] designated by the President 
        to authorize electronic surveillance for foreign 
        intelligence purposes--
                  (A) * * *

           *       *       *       *       *       *       *

                  (C) that such information cannot reasonably 
                be obtained by normal investigative techniques; 
                and
                  [(D) that designates the type of foreign 
                intelligence information being sought according 
                to the categories described in section 101(e); 
                and
                  [(E) including a statement of the basis for 
                the certification that--
                          [(i) the information sought is the 
                        type of foreign intelligence 
                        information designated; and
                          [(ii) such information cannot 
                        reasonably be obtained by normal 
                        investigative techniques;]
                  (D) including a statement of the basis for 
                the certification that the information sought 
                is the type of foreign intelligence information 
                designated;
          [(8) a statement of the means by which the 
        surveillance will be effected and] (7) a statement 
        whether physical entry is required to effect the 
        surveillance; and
          [(9) a statement of the facts concerning all previous 
        applications that have been made to any judge under 
        this title involving any of the persons, facilities, or 
        places specified in the application, and the action 
        taken on each previous application;]
          [(10)] (8) a statement of the period of time for 
        which the electronic surveillance is required to be 
        maintained, and if the nature of the intelligence 
        gathering is such that the approval of the use of 
        electronic surveillance under this title should not 
        automatically terminate when the described type of 
        information has first been obtained, a description of 
        facts supporting the belief that additional information 
        of the same type will be obtained thereafter[; and].
          [(11) whenever more than one electronic, mechanical 
        or other surveillance device is to be used with respect 
        to a particular proposed electronic surveillance, the 
        coverage of the devices involved and what minimization 
        procedures apply to information acquired by each 
        device.]
  [(b) Whenever the target of the electronic surveillance is a 
foreign power, as defined in section 101(a) (1), (2), or (3), 
and each of the facilities or places at which the surveillance 
is directed is owned, leased, or exclusively used by that 
foreign power, the application need not contain the information 
required by paragraphs (6), (7)(E), (8), and (11) of subsection 
(a), but shall state whether physical entry is required to 
effect the surveillance and shall contain such information 
about the surveillance techniques and communications or other 
information concerning United States persons likely to be 
obtained as may be necessary to assess the proposed 
minimization procedures.]
  [(c)] (b) The Attorney General may require any other 
affidavit or certification from any other officer in connection 
with the application.
  [(d)] (c) The judge may require the applicant to furnish such 
other information as may be necessary to make the 
determinations required by section 105.
  [(e)] (d)(1)(A) * * *

           *       *       *       *       *       *       *

                          ISSUANCE OF AN ORDER

    Sec. 105. (a) Upon an application made pursuant to section 
104, the judge shall enter an ex parte order as requested or as 
modified approving the electronic surveillance if he finds 
that--
          [(1) the President has authorized the Attorney 
        General to approve applications for electronic 
        surveillance for foreign intelligence information;]
          [(2)] (1) the application has been made by a Federal 
        officer and approved by the Attorney General;
          [(3)] (2) on the basis of the facts submitted by the 
        applicant there is probable cause to believe that--
                  (A) the target of the electronic surveillance 
                is a foreign power or an agent of a foreign 
                power: Provided, That no United States person 
                may be considered a foreign power or an agent 
                of a foreign power solely upon the basis of 
                activities protected by the first amendment to 
                the Constitution of the United States; and
                  (B) each of the facilities or places at which 
                the electronic surveillance is directed is 
                being used, or is about to be used, by a 
                foreign power or an agent of a foreign power;
          [(4)] (3) the proposed minimization procedures meet 
        the definition of minimization procedures under section 
        101(h); and
          [(5)] (4) the application which has been filed 
        contains all statements and certifications required by 
        section 104 and, if the target is a United States 
        person, the certification or certifications are not 
        clearly erroneous on the basis of the statement made 
        under section [104(a)(7)(E)] 104(a)(6)(D) and any other 
        information furnished under section [104(d)] 104(c).

           *       *       *       *       *       *       *

  (c)(1) Specifications.--An order approving an electronic 
surveillance under this section shall specify--
          (A) * * *
          (B) the nature and location of each of the facilities 
        or places at which the electronic surveillance will be 
        directed, if known; and
          [(C) the type of information sought to be acquired 
        and the type of communications or activities to be 
        subjected to the surveillance;
          [(D) the means by which the electronic surveillance 
        will be effected and whether physical entry will be 
        used to effect the surveillance;]
          [(E) the means by which the electronic surveillance 
        will be effected and whether physical entry will be 
        used to effect the surveillance;]
          [(F) whenever more than one electronic, mechanical, 
        or other surveillance device is to be used under the 
        order, the authorized coverage of the devices involved 
        and what minimization procedures shall apply to 
        information subject to acquisition by each device.]

           *       *       *       *       *       *       *

  [(d) Whenever the target of the electronic surveillance is a 
foreign power, as defined in section 101(a) (1), (2), or (3), 
and each of the facilities or places at which the surveillance 
is directed is owned, leased, or exclusively used by that 
foreign power, the order used need not contain the information 
required by subparagraphs (C), (D), and (F) of subsection 
(c)(1), but shall generally describe the information sought, 
the communications or activities to be subjected to the 
surveillance, and the type of electronic surveillance involved, 
including whether physical entry is required.]
  [(e)] (d)(1) An order issued under this section may approve 
an electronic surveillance [for the period necessary to achieve 
its purpose, or for ninety days, whichever is less, except that 
(A) an order under this section shall approve an electronic 
surveillance targeted against a foreign power, as defined in 
section 101(a), (1), (2), or (3), for the period specified in 
the application or for one year, whichever is less, and (B) an 
order under this Act for a surveillance targeted against an 
agent of a foreign power who is not a United States person may 
be for the period specified in the application or for 120 days, 
whichever is less.] for a period not to exceed one year.
  (2) Extensions of an order issued under this title may be 
granted on the same basis as an original order upon an 
application for an extension and new findings made in the same 
manner as required for an [original order, except that (A) an 
extension of an order under this Act for a surveillance 
targeted against a foreign power, a defined in section 101(a) 
(5) or (6), or against a foreign power as defined in section 
101(a)(4) that is not a United States person, may be for a 
period not to exceed one year if the judge finds probable cause 
to believe that no communication of any individual United 
States person will be acquired during the period, and (B) an 
extension of an order under this Act for a surveillance 
targeted against an agent of a foreign power who is not a 
United States person may be for a period not to exceed 1 year.] 
original order for a period not to exceed one year.
  [(f) Notwithstanding any other provision of this title, when 
the Attorney General reasonably determines that--
          [(1) an emergency situation exists with respect to 
        the employment of electronic surveillance to obtain 
        foreign intelligence information before an order 
        authorizing such surveillance can with due diligence be 
        obtained; and
          [(2) the factual basis for issuance of an order under 
        this title to approve such surveillance exists;
he may authorize the emergency employment of electronic 
surveillance if a judge having jurisdiction under section 103 
is informed by the Attorney General or his designee at the time 
of such authorization that the decision has been made to employ 
emergency electronic surveillance and if an application in 
accordance with this title is made to that judge as soon as 
practicable, but not more than 72 hours after the Attorney 
General authorizes such surveillance. If the Attorney General 
authorizes such emergency employment of electronic 
surveillance, he shall require that the minimization procedures 
required by this title for the issuance of a judicial order be 
followed. In the absence of a judicial order approving such 
electronic surveillance, the surveillance shall terminate when 
the information sought is obtained, when the application for 
the order is denied, or after the expiration of 72 hours from 
the time of authorization by the Attorney General, whichever is 
earliest. In the event that such application for approval is 
denied, or in any other case where the electronic surveillance 
is terminated and no order is issued approving the 
surveillance, no information obtained or evidence derived from 
such surveillance shall be received in evidence or otherwise 
disclosed in any trial, hearing, or other proceeding in or 
before any court, grand jury, department, office, agency, 
regulatory body, legislative committee, or other authority of 
the United States, a State, or political subdivision thereof, 
and no information concerning any United States person acquired 
from such surveillance shall subsequently be used or disclosed 
in any other manner by Federal officers or employees without 
the consent of such person, except with the approval of the 
Attorney General if the information indicates a threat of death 
or serious bodily harm to any person. A denial of the 
application made under this subsection may be reviewed as 
provided in section 103.]
  (e) Notwithstanding any other provision of this title, the 
Attorney General may authorize the emergency employment of 
electronic surveillance if the Attorney General--
          (1) determines that an emergency situation exists 
        with respect to the employment of electronic 
        surveillance to obtain foreign intelligence information 
        before an order authorizing such surveillance can with 
        due diligence be obtained;
          (2) determines that the factual basis for issuance of 
        an order under this title to approve such surveillance 
        exists;
          (3) informs a judge having jurisdiction under section 
        103 at the time of such authorization that the decision 
        has been made to employ emergency electronic 
        surveillance; and
          (4) makes an application in accordance with this 
        title to a judge having jurisdiction under section 103 
        as soon as practicable, but not more than 120 hours 
        after the official authorizes such surveillance.
If the Attorney General authorizes such emergency employment of 
electronic surveillance, the Attorney General shall require 
that the minimization procedures required by this title for the 
issuance of a judicial order be followed. In the absence of a 
judicial order approving such electronic surveillance, the 
surveillance shall terminate when the information sought is 
obtained, when the application for the order is denied, or 
after the expiration of 120 hours from the time of 
authorization by the Attorney General, whichever is earliest. 
In the event that such application for approval is denied, or 
in any other case where the electronic surveillance is 
terminated and no order is issued approving the surveillance, 
no information obtained or evidence derived from such 
surveillance shall be received in evidence or otherwise 
disclosed in any trial, hearing, or other proceeding in or 
before any court, grand jury, department, office, agency, 
regulatory body, legislative committee, or other authority of 
the United States, a State, or political subdivision thereof, 
and no information concerning any United States person acquired 
from such surveillance shall subsequently be used or disclosed 
in any other manner by Federal officers or employees without 
the consent of such person, except with the approval of the 
Attorney General if the information indicates a threat of death 
or serious bodily harm to any person. A denial of the 
application made under this subsection may be reviewed as 
provided in section 103.
  [(g)] (f) Notwithstanding any other provision of this title, 
officers, employees, or agents of the United States are 
authorized in the normal course of their official duties to 
conduct electronic surveillance not targeted against the 
communications of any particular person or persons, under 
procedures approved by the Attorney General, solely to--
          (1) * * *

           *       *       *       *       *       *       *

  [(h)] (g) Certifications made by the Attorney General 
pursuant to section 102(a) and applications made and orders 
granted under this title shall be retained for a period of at 
least ten years from the date of the certification or 
application.
  [(i)] (h) No cause of action shall lie in any court against 
any provider of a wire or electronic communication service, 
landlord, custodian, or other person (including any officer, 
employee, agent, or other specified person thereof) that 
furnishes any information, facilities, or technical [assistance 
in accordance with a court order or request for emergency 
assistance under this Act for electronic surveillance or 
physical search.] assistance--
          (1) in accordance with a court order or request for 
        emergency assistance under this Act for electronic 
        surveillance or physical search; or
          (2) in response to a certification by the Attorney 
        General or a designee of the Attorney General seeking 
        information, facilities, or technical assistance from 
        such person that does not constitute electronic 
        surveillance.

                           USE OF INFORMATION

    Sec. 106. (a) * * *

           *       *       *       *       *       *       *

  (i) In circumstances involving the unintentional acquisition 
by an electronic, mechanical, or other surveillance device of 
the contents of any [radio] communication, under circumstances 
in which a person has a reasonable expectation of privacy and a 
warrant would be required for law enforcement purposes, and if 
both the sender and all intended recipients are located within 
the United States, such contents shall be destroyed upon 
recognition, unless the Attorney General determines that the 
[contents indicates] contents contain significant foreign 
intelligence information or indicate a threat of death or 
serious bodily harm to any person.
  (j) If an emergency employment of electronic surveillance is 
authorized under section [105(e)] 105(d) and a subsequent order 
approving the surveillance is not obtained, the judge shall 
cause to be served on any United States person named in the 
application and on such other United States persons subject to 
electronic surveillance as the judge may determine in his 
discretion it is in the interest of justice to serve, notice 
of--
          (1) * * *

           *       *       *       *       *       *       *

  (k)(1) * * *
  (2) Coordination authorized under paragraph (1) shall not 
preclude the certification required by section [104(a)(7)(B)] 
104(a)(6)(B) or the entry of an order under section 105.

           *       *       *       *       *       *       *

                        CONGRESSIONAL OVERSIGHT

    Sec. 108. (a)(1) * * *
          (2) Each report under the first sentence of paragraph 
        (1) shall include a description of--
                  (A) * * *
                  (B) each criminal case in which information 
                acquired under this Act has been authorized for 
                use at trial during the period covered by such 
                report; [and]
                  (C) the total number of emergency employments 
                of electronic surveillance under section 
                [105(f)] 105(e) and the total number of 
                subsequent orders approving or denying such 
                electronic surveillance[.]; and
                  (D) the authority under which the electronic 
                surveillance is conducted.
          (3) Each report submitted under this subsection shall 
        include reports on electronic surveillance conducted 
        without a court order.

           *       *       *       *       *       *       *

                    AUTHORIZATION DURING TIME OF WAR

    Sec. 111. Notwithstanding any other law, the President, 
through the Attorney General, may authorize electronic 
surveillance without a court order under this title to acquire 
foreign intelligence information [for a period not to exceed 
fifteen calendar days following a declaration of war by the 
Congress.] for a period not to exceed 60 days following an 
armed attack against the territory of the United States if the 
President submits to the Permanent Select Committee on 
Intelligence of the House of Representatives and the Select 
Committee on Intelligence of the Senate notification of the 
authorization under this section.--

   AUTHORIZATION FOLLOWING A TERRORIST ATTACK UPON THE UNITED STATES

  Sec. 112. (a) In General.--Notwithstanding any other 
provision of law, but subject to the provisions of this 
section, the President, acting through the Attorney General, 
may authorize electronic surveillance without an order under 
this title to acquire foreign intelligence information for a 
period not to exceed 45 days following a terrorist attack 
against the United States if the President submits a 
notification to the congressional intelligence committees and a 
judge having jurisdiction under section 103 that--
          (1) the United States has been the subject of a 
        terrorist attack; and
          (2) identifies the terrorist organizations or 
        affiliates of terrorist organizations believed to be 
        responsible for the terrorist attack.
  (b) Subsequent Certifications.--At the end of the 45-day 
period described in subsection (a), and every 45 days 
thereafter, the President may submit a subsequent certification 
to the congressional intelligence committees and a judge having 
jurisdiction under section 103 that the circumstances of the 
terrorist attack for which the President submitted a 
certification under subsection (a) require the President to 
continue the authorization of electronic surveillance under 
this section for an additional 45 days. The President shall be 
authorized to conduct electronic surveillance under this 
section for an additional 45 days after each such subsequent 
certification.
  (c) Electronic Surveillance of Individuals.--The President, 
or an official designated by the President to authorize 
electronic surveillance, may only conduct electronic 
surveillance of a person under this section if the President or 
such official determines that--
          (1) there is a reasonable belief that such person is 
        communicating with a terrorist organization or an 
        affiliate of a terrorist organization that is 
        reasonably believed to be responsible for the terrorist 
        attack; and
          (2) the information obtained from the electronic 
        surveillance may be foreign intelligence information.
  (d) Minimization Procedures.--The President may not authorize 
electronic surveillance under this section until the Attorney 
General approves minimization procedures for electronic 
surveillance conducted under this section.
  (e) United States Persons.--Notwithstanding subsection (b), 
the President may not authorize electronic surveillance of a 
United States person under this section without an order under 
this title for a period of more than 90 days unless the 
President, acting through the Attorney General, submits a 
certification to the congressional intelligence committees 
that--
          (1) the continued electronic surveillance of the 
        United States person is vital to the national security 
        of the United States;
          (2) describes the circumstances that have prevented 
        the Attorney General from obtaining an order under this 
        title for continued surveillance;
          (3) describes the reasons for believing the United 
        States person is affiliated with or in communication 
        with a terrorist organization or affiliate of a 
        terrorist organization that is reasonably believed to 
        be responsible for the terrorist attack; and
          (4) describes the foreign intelligence information 
        derived from the electronic surveillance conducted 
        under this section.
  (f) Use of Information.--Information obtained pursuant to 
electronic surveillance under this subsection may be used to 
obtain an order authorizing subsequent electronic surveillance 
under this title.
  (g) Reports.--Not later than 14 days after the date on which 
the President submits a certification under subsection (a), and 
every 30 days thereafter until the President ceases to 
authorize electronic surveillance under subsection (a) or (b), 
the President shall submit to the congressional intelligence 
committees a report on the electronic surveillance conducted 
under this section, including--
          (1) a description of each target of electronic 
        surveillance under this section; and
          (2) the basis for believing that each target is in 
        communication with a terrorist organization or an 
        affiliate of a terrorist organization.
  (h) Congressional Intelligence Committees Defined.--In this 
section, the term ``congressional intelligence committees'' 
means the Permanent Select Committee on Intelligence of the 
House of Representatives and the Select Committee on 
Intelligence of the Senate.

                  AUTHORIZATION DUE TO IMMINENT THREAT

  Sec. 113. (a) In General.--Notwithstanding any other 
provision of law, but subject to the provisions of this 
section, the President, acting through the Attorney General, 
may authorize electronic surveillance without an order under 
this title to acquire foreign intelligence information for a 
period not to exceed 90 days if the President submits to the 
congressional leadership, the congressional intelligence 
committees, and the Foreign Intelligence Surveillance Court a 
written notification that the President has determined that 
there exists an imminent threat of attack likely to cause 
death, serious injury, or substantial economic damage to the 
United States. Such notification--
          (1) shall be submitted as soon as practicable, but in 
        no case later than 5 days after the date on which the 
        President authorizes electronic surveillance under this 
        section;
          (2) shall specify the entity responsible for the 
        threat and any affiliates of the entity;
          (3) shall state the reason to believe that the threat 
        of imminent attack exists;
          (4) shall state the reason the President needs 
        broader authority to conduct electronic surveillance in 
        the United States as a result of the threat of imminent 
        attack;
          (5) shall include a description of the foreign 
        intelligence information that will be collected and the 
        means that will be used to collect such foreign 
        intelligence information; and
          (6) may be submitted in classified form.
  (b) Subsequent Certifications.--At the end of the 90-day 
period described in subsection (a), and every 90 days 
thereafter, the President may submit a subsequent written 
notification to the congressional leadership, the congressional 
intelligence committees, the other relevant committees, and the 
Foreign Intelligence Surveillance Court that the circumstances 
of the threat for which the President submitted a written 
notification under subsection (a) require the President to 
continue the authorization of electronic surveillance under 
this section for an additional 90 days. The President shall be 
authorized to conduct electronic surveillance under this 
section for an additional 90 days after each such subsequent 
written notification.
  (c) Electronic Surveillance of Individuals.--The President, 
or an official designated by the President to authorize 
electronic surveillance, may only conduct electronic 
surveillance of a person under this section if the President or 
such official determines that--
          (1) there is a reasonable belief that such person is 
        communicating with an entity or an affiliate of an 
        entity that is reasonably believed to be responsible 
        for imminent threat of attack; and
          (2) the information obtained from the electronic 
        surveillance may be foreign intelligence information.
  (d) Minimization Procedures.--The President may not authorize 
electronic surveillance under this section until the Attorney 
General approves minimization procedures for electronic 
surveillance conducted under this section.
  (e) United States Persons.--Notwithstanding subsections (a) 
and (b), the President may not authorize electronic 
surveillance of a United States person under this section 
without an order under this title for a period of more than 60 
days unless the President, acting through the Attorney General, 
submits a certification to the congressional intelligence 
committees that--
          (1) the continued electronic surveillance of the 
        United States person is vital to the national security 
        of the United States;
          (2) describes the circumstances that have prevented 
        the Attorney General from obtaining an order under this 
        title for continued surveillance;
          (3) describes the reasons for believing the United 
        States person is affiliated with or in communication 
        with an entity or an affiliate of an entity that is 
        reasonably believed to be responsible for imminent 
        threat of attack; and
          (4) describes the foreign intelligence information 
        derived from the electronic surveillance conducted 
        under this section.
  (f) Use of Information.--Information obtained pursuant to 
electronic surveillance under this subsection may be used to 
obtain an order authorizing subsequent electronic surveillance 
under this title.
  (g) Definitions.--In this section:
          (1) Congressional intelligence committees.--The term 
        ``congressional intelligence committees'' means the 
        Permanent Select Committee on Intelligence of the House 
        of Representatives and the Select Committee on 
        Intelligence of the Senate.
          (2) Congressional leadership.--The term 
        ``congressional leadership'' means the Speaker and 
        minority leader of the House of Representatives and the 
        majority leader and minority leader of the Senate.
          (3) Foreign intelligence surveillance court.--The 
        term ``Foreign Intelligence Surveillance Court'' means 
        the court established under section 103(a).
          (4) Other relevant committees.--The term ``other 
        relevant committees'' means the Committees on 
        Appropriations, the Committees on Armed Services, and 
        the Committees on the Judiciary of the House of 
        Representatives and the Senate.

           *       *       *       *       *       *       *

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

                              DEFINITIONS

  Sec. 301. As used in this title:
          (1) * * *

           *       *       *       *       *       *       *

          (5) ``Physical search'' means any physical intrusion 
        within the United States into premises or property 
        (including examination of the interior of property by 
        technical means) that is intended to result in a 
        seizure, reproduction, inspection, or alteration of 
        information, material, or property, under circumstances 
        in which a person has a reasonable expectation of 
        privacy and a warrant would be required for law 
        enforcement purposes, but does not include (A) 
        ``electronic surveillance'', as defined in section 
        101(f) of this [Act, or (B)] Act, (B) activities 
        described in section 102(b) of this Act, or (C) the 
        acquisition by the United States Government of foreign 
        intelligence information from international or foreign 
        communications, or foreign intelligence activities 
        conducted in accordance with otherwise applicable 
        Federal law involving a foreign electronic 
        communications system, utilizing a means other than 
        electronic surveillance as defined in section 101(f) of 
        this Act.

           *       *       *       *       *       *       *

                    AUTHORIZATION DURING TIME OF WAR

  Sec. 309. Notwithstanding any other provision of law, the 
President, through the Attorney General, may authorize physical 
searches without a court order under this title to acquire 
foreign intelligence information [for a period not to exceed 15 
calendar days following a declaration of war by the Congress.] 
for a period not to exceed 60 days following an armed attack 
against the territory of the United States if the President 
submits to the Permanent Select Committee on Intelligence of 
the House of Representatives and the Select Committee on 
Intelligence of the Senate notification of the authorization 
under this section.

           *       *       *       *       *       *       *

                              ----------                              

NATIONAL SECURITY ACT OF 1947

           *       *       *       *       *       *       *

          TITLE V--ACCOUNTABILITY FOR INTELLIGENCE ACTIVITIES

               GENERAL CONGRESSIONAL OVERSIGHT PROVISIONS

  Sec. 501. (a) * * *

           *       *       *       *       *       *       *

  (f) The Chair of each of the congressional intelligence 
committees, in consultation with the ranking member of the 
committee for which the person is Chair, may inform--
          (1) on a bipartisan basis, all members or any 
        individual members of such committee, and
          (2) any essential staff of such committee,
of a report submitted under subsection (a)(1) or subsection (b) 
as such Chair considers necessary.
  [(f)] (g) As used in this section, the term ``intelligence 
activities'' includes covert actions as defined in section 
503(e), and includes financial intelligence activities.

     REPORTING OF INTELLIGENCE ACTIVITIES OTHER THAN COVERT ACTIONS

  Sec. 502. (a) * * *

           *       *       *       *       *       *       *

  (d) Informing of Committee Members.--The Chair of each of the 
congressional intelligence committees, in consultation with the 
ranking member of the committee for which the person is Chair, 
may inform--
          (1) on a bipartisan basis, all members or any 
        individual members of such committee, and
          (2) any essential staff of such committee,
of a report submitted under subsection (a) as such Chair 
considers necessary.

         PRESIDENTIAL APPROVAL AND REPORTING OF COVERT ACTIONS

  Sec. 503. (a) * * *

           *       *       *       *       *       *       *

  (g) The Chair of each of the congressional intelligence 
committees, in consultation with the ranking member of the 
committee for which the person is Chair, may inform--
          (1) on a bipartisan basis, all members or any 
        individual members of such committee, and
          (2) any essential staff of such committee,
of a report submitted under subsection (b), (c), or (d) as such 
Chair considers necessary.

           *       *       *       *       *       *       *

                             MINORITY VIEWS

    All nine Democratic Members of the House Permanent Select 
Committee on Intelligence support strong, modem, and lawful 
tools to fight terrorism. We want to intercept their 
communications, track their whereabouts, and disrupt their 
plans. We stand ready and willing to respond to any reasonable 
request from the Administration for additional legal tools for 
the National Security Agency (NSA). But we believe that how we 
use these tools is a measure of who we are as a nation--a 
yardstick by which the rest of the world will view our 
commitment to the values upon which this country was founded. 
Those who founded our country created a system of checks and 
balances and we believe their vision should be preserved. 
Congress should not give any President unchecked authority to 
eavesdrop on Americans.
     The Foreign Intelligence Surveillance Act (FISA) is a 
modern, flexible statute that allows the government to conduct 
electronic surveillance on Americans. As the record in our 
Committee has made clear, FISA is a vital tool for the Federal 
Bureau of Investigation (FBI) and the NSA in their 
investigations of terrorism and espionage.
    There is no evidence in the record of our Committee that 
FISA must be rewritten in favor of a new regime permitting 
broad warrantless surveillance of Americans. Yet H.R. 5825 does 
exactly that.
    We have heard the claim that the law is ``outmoded,'' but 
FISA has been amended and modernized numerous times over the 
past 28 years, including most recently in the reauthorization 
of the USA PATRIOT Act in March. The Congressional Research 
Service (CRS) provided a report to this Committee showing that 
51 separate provisions in twelve different bills have amended 
FISA--many of those in just the past five years.
    Given that H.R. 5825 is intended to address concerns over 
the President's domestic surveillance program, it is stunning 
how little oversight this Committee has actually conducted and 
how little information we have about the program.
    For months we have asked that Committee members meet with 
the NSA Inspector General, members of the Foreign Intelligence 
Surveillance Court, the Department of Justice (DOJ), the FBI, 
and the Central Intelligence Agency (CIA) to learn whether the 
program has helped stop any terrorist attacks. The Majority 
denied each of those requests. We have asked for a copy of the 
President's Authorization for the program and for other core 
documents. The Administration has refused to produce them. In 
June, the Ranking Member asked the Chairman to join her in 
sending a letter to the NSA Inspector General asking to review 
his seven reports on the program. The Chairman did not agree to 
send that letter.
    We have received occasional briefings from NSA officials, 
but none of these briefings have been on the record, on the 
purported theory that we could not find a single cleared 
stenographer. This problem persisted despite the fact that 
thousands of Executive Branch officials have been briefed into 
this program.
    The Chairman committed in public to hold hearings with 
Administration officials to help determine what changes to 
FISA, if any, were needed to accommodate the President's 
program. We had hoped to have Attorney General Gonzales 
testify. But no such hearings were held. In fact, the Committee 
never even extended an invitation to the Attorney General.
    H.R. 5825 is a dangerously broad bill that would turn FISA 
on its head by making warrantless surveillance the rule rather 
than the exception. It does so by altering the definition of 
key terms within FISA that govern what forms of surveillance 
require a warrant and by carving out giant loopholes that give 
the Administration broad powers to conduct all types of 
surveillance without a warrant.
    H.R. 5825 proposes sweeping alterations to the definition 
of ``electronic surveillance'' that would drastically shrink 
the universe of communications for which a warrant is required. 
It radically expands the definition of ``agent of a foreign 
power.'' It seriously erodes the protections against 
dissemination of information collected on U.S. persons. And it 
offers a new definition of ``surveillance device'' that would 
allow the government to conduct unregulated data retention and 
mining operations on all the information collected from the 
vast warrantless surveillance that this bill authorizes.
    In other sections, H.R. 5825 grants the Administration the 
authority, under poorly defined circumstances, to conduct 
surveillance without a warrant. The bill grants the government 
the power to conduct unlimited surveillance in the event of an 
``armed attack'' and in the event of a ``terrorist attack.'' 
Though neither of these terms is defined anywhere in the law. 
Therefore, these sweeping exceptions give the Executive Branch 
carte blanche authority to conduct surveillance as it sees fit.
    Further, the Majority offered an Amendment in the Nature of 
a Substitute to H.R. 5825 to create yet another loophole that 
would allow the same sort of warrantless surveillance when the 
United States is facing an ``imminent threat of attack.'' Here, 
again, the terms are so loosely defined that the potential for 
abusive interpretation threatens to swallow the statute whole.
    In sum, H.R. 5825's vague definitions and broad loopholes 
allow the Executive Branch to conduct electronic surveillance 
of telephone calls and e-mail in the United States without 
court orders and without meaningful oversight.
    The Minority offered several amendments to address these 
concerns; sadly, all were rejected during markup on a party-
line vote.
    First, Representatives Harman and Boswell offered an 
amendment that would have substituted H.R. 5825 with H.R. 5371, 
the LISTEN Act (Lawful Intelligence and Surveillance of 
Terrorists in an Emergency by the NSA). The strength of the 
LISTEN Act is that it only fixes what is broken.
    This amendment would have made clear that FISA is the 
exclusive means by which the Executive Branch may conduct 
electronic surveillance of Americans for intelligence purposes. 
It would have reiterated that the Authorization for the Use of 
Military Force (AUMF) did not authorize the President's 
domestic surveillance program; it did not repeal FISA. It would 
have invited the President and the Attorney General to tell us 
what is wrong with the FISA process so that we can fix it. It 
would have also required the President to identify any 
additional resources needed to help the NSA and the DOJ fight 
the war on terror using FISA authorities. And it would have 
pledged that Congress would fund additional attorneys, analysts 
and information technology upgrades to make FISA more 
efficient.
    An amendment offered by Representatives Eshoo and Holt 
would have altered FISA's definition of ``electronic 
surveillance'' to make the statute technology neutral. Making 
this fix would require changing only a few words in the statute 
to eliminate the distinction between wire and radio 
communications. Unlike H.R. 5825, the tailored fix offered by 
Representatives Eshoo and Holt would have updated the law 
without gutting FISA.
    An amendment offered by Representatives Holt and 
Ruppersberger would have reaffirmed the principle that FISA is 
the exclusive means for conducting electronic surveillance in 
the United States. This amendment would have ensured that the 
President would be held to the rules--even the permissive rules 
of H.R. 5825. As it stands today, if H.R. 5825 passes, the 
President can avail himself of its loose rules when he wishes 
or circumvent those loose rules if he so chooses.
    Representative Reyes offered an amendment finding that the 
AUMF does not constitute legal authorization for electronic 
surveillance outside of FISA. We do not believe that any 
Member's vote on the AUMF was a vote for warrantless 
surveillance of law-abiding citizens in contravention of the 
Fourth Amendment of the Constitution.
    Representative Hastings offered an amendment that would 
have clarified existing law by reaffirming that FISA does not 
require a warrant to monitor telephone calls where all 
participants are located outside the United States. This 
amendment would have allowed free surveillance of foreign-to-
foreign communications but would have left the other critical 
FISA provisions intact. There is no reasonable explanation why 
the Majority would oppose this provision.
    Protecting America from terrorism is our highest duty. We 
need to get serious about the task. It is election season, and 
a debate on surveillance brings political benefits to some. But 
that is a terrible reason to legislate. We do not want to 
suspend our 217-year-old Constitution, whether for political 
reasons or for no reason at all.
                                   Jane Harman.
                                           Ranking Democrat
                                   Silvestre Reyes.
                                   Bud Cramer.
                                   Rush Holt.
                                   John F. Tierney.
                                   Alcee L. Hastings.
                                   Leonard L. Boswell.
                                   Anna Eshoo.
                                   C.A. Dutch Ruppersberger.

                            ADDITIONAL VIEWS

    I have joined my Democratic colleagues in signing the 
minority views as they reflect the ``mark-up'' session's events 
and general overview of the situation surrounding the meeting. 
It is instructive, I believe, to make some brief additional 
observations.
    The Administration has yet to articulate on record specific 
justifications for arguing that executive powers broader than 
those within the Foreign Intelligence Surveillance Act would be 
necessary in order to intercept communications under the so-
called ``President's Program.'' As more than one witness 
pointed out in the course of related hearings, the President 
and his Administration assert only broadly that there may be 
some issue with respect to complying in a timely manner with 
emergency provisions for seeking a warrant. Any problems in 
this regard seem self-induced as a result of bureaucratic 
processes established within the originating agency or the 
Department of Justice, and not from any delay in the Foreign 
Intelligence Surveillance Court. Additional staff or revised 
procedures could address the matter without statutory 
amendment. Nevertheless, the LISTEN Act, proposed by 
Representative Harman and co-sponsored by 64 of other members, 
including the minority HPSCI members, would make clear 
Congress' willingness to make additional resources available as 
requested.
    There was some assertion that agencies were interpreting 
the law to indicate that they felt certain foreign-to-foreign 
communications routed in any way through domestic 
infrastructure might necessitate a warrant, thus burdening the 
process. Experts have indicated that a clear reading of 
existing statutory language would obviate such concerns as it 
addresses intercepts of communications from and to foreign 
persons. A simple clarification of the statute (offered as an 
amendment by Representative Hastings of Florida) could resolve 
any lingering doubts, and Senator Feinstein's bill even goes so 
far as to clarify it statutorily.
    A wholesale revision of the FISA, especially one so radical 
as that proposed in Representative Wilson's bill, is not 
necessary to address the only concerns of record articulated by 
the Administration. It would be reasonable for the public to 
then wonder whether the Administration is being forthcoming in 
its real purposes for having surreptitiously conducted the 
``President's Program'' for so long or for seeking new 
legislation. Is there more to the Executive's intentions under 
such broad authority, or, as some have speculated, are those 
within the Administration who have chafed under what they 
perceived as a loss of executive authority under FISA simply 
asserting a point here? With respect to the latter, we should 
note that the United States Supreme Court has recently made it 
abundantly clear that when Congress has spoken by law on a 
matter within its purview, the Executive is not at liberty 
simply to controvert Congress' intentions unilaterally. 
Congress should not be an accomplice to a diminution of its 
rightful authority by passing unnecessarily broad legislation 
absent specific evidence of its necessity for the nation's 
security. That burden has not been met in this instance. The 
Executive, under FISA, has ample authority to intercept 
terrorists' communications as appropriate to protect the 
country, and a Congress willing--as shown over time and most 
recently since 9/11 via the PATRIOT Act--to amend FISA if 
necessary to resolve clearly articulated needs.
                                                      John Tierney.

                                  
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