I

103D CONGRESS

2D SESSION H. R. 4137

To amend the National Security Act of 1947 to improve counterintelligence

measures through enhanced security for classified information, and for

other purposes.

IN THE HOUSE OF REPRESENTATIVES

MARCH 24, 1994

Mr. HYDE (for himself and Mr. WILSON) introduced the following bill; which

was referred jointly to the Committees on Permanent Select Committee

on Intelligence, the Judiciary, Banking, Finance and Urban Affairs, and

Post Office and Civil Service

A BILL

To amend the National Security Act of 1947 to improve

counterintelligence measures through enhanced security

for classified information, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Counterintelligence

5 Improvements Act of 1994’’.
2

•HR 4137 IH

1 SEC. 2. AMENDMENT TO THE NATIONAL SECURITY ACT OF

2 1947.

3 (a) The National Security Act of 1947 (50 U.S.C.

4 401 et seq.) is amended by inserting at the end thereof

5 the following new title:

6 ‘‘TITLE VIII—ACCESS TO TOP SECRET

7 INFORMATION

8 ‘‘ELIGIBILITY FOR ACCESS TO TOP SECRET INFORMATION

9 ‘‘SEC. 801. (a) The President and Vice President,

10 Members of the Congress, Justices of the Supreme Court

11 and judges of other courts of the United States established

12 pursuant to Article III of the Constitution, shall, by virtue

13 of their elected or appointed positions, be entitled to access

14 to Top Secret information needed for the performance of

15 their governmental functions without regard to the other

16 provisions of this title.

17 ‘‘(b) Among employees of the United States Govern18 ment, access to Top Secret information shall be limited

19 to employees—

20 ‘‘(1) who have been granted access to such in21 formation pursuant to this title;

22 ‘‘(2) who are citizens of the United States who

23 require routine access to such information for the

24 performance of official governmental functions; and

25 ‘‘(3) who have been determined to be trust26 worthy based upon a background investigation and
3

•HR 4137 IH

1 appropriate reinvestigations and have otherwise sat2 isfied the requirements of section 802, below.

3 ‘‘(c) Access to Top Secret information by persons

4 other than those identified in subsections (a) and (b) shall

5 be permitted only in accordance with the regulations is6 sued by the President pursuant to section 802 below.

7 ‘‘IMPLEMENTING REGULATIONS

8 ‘‘Sec. 802. The President shall, within 180 days of

9 enactment of this title, issue regulations to implement this

10 title which shall be binding upon all departments, agen11 cies, and offices of the Executive branch. These regula12 tions shall, at a minimum, provide that:

13 ‘‘(1) No employee of the United States Govern14 ment shall be given access to Top Secret information

15 owned, originated or possessed by the United States,

16 after the effective date of this title, by any depart17 ment, agency, or entity of the United States Govern18 ment unless such person has been subject to an ap19 propriate background investigation and has—

20 ‘‘(A) provided consent to the investigative

21 agency responsible for conducting the security

22 investigation of such person, during the initial

23 background investigation and for such times as

24 access to such information is maintained, and

25 for 5 years thereafter, permitting access to—
4

•HR 4137 IH

1 ‘‘(i) financial records concerning the

2 subject pursuant to section 1104 of the

3 Right to Financial Privacy Act of 1978;

4 ‘‘(ii) consumer reports concerning the

5 subject pursuant to section 1681b of the

6 Consumer Credit Protection Act; and

7 ‘‘(iii) records maintained by commer8 cial entities within the United States per9 taining to any travel by the subject outside

10 the United States.

11 For the purposes of this subparagraph—

12 ‘‘(I) no information may be requested

13 by an authorized investigative agency pur14 suant to this section for any purpose other

15 than making a security determination;

16 ‘‘(II) where the person concerned no

17 longer has access to Top Secret informa18 tion, no information may be requested by

19 an authorized investigative agency pursu20 ant to this section unless such agency has

21 reasonable grounds to believe, based upon

22 specific and articulable facts available to it,

23 that such person may pose a threat to the

24 continued security of the information to
5

•HR 4137 IH

1 which he or she had previously had access;

2 and

3 ‘‘(III) any information obtained by an

4 authorized investigative agency pursuant to

5 this section shall not be disseminated to

6 any other department, agency, or entity for

7 any purpose other than for making a secu8 rity determination, or for foreign counter9 intelligence or law enforcement purposes.

10 ‘‘(B) Agreed, during the period of his or

11 her access, to report to the department, agency,

12 or entity granting such access in accordance

13 with applicable regulations, any travel to for14 eign countries which has not been authorized as

15 part of the subject’s official duties.

16 ‘‘(C) Agreed to report to the Federal Bu17 reau of Investigation, or to appropriate inves18 tigative authorities of the department, agency,

19 or entity concerned, any unauthorized contacts

20 with persons known to be foreign nationals or

21 persons representing foreign nationals, where

22 an effort to acquire classified information is

23 made by the foreign national, or where such

24 contacts appear intended for this purpose. For

25 purposes of this subsection, the term ‘unauthor-
6

•HR 4137 IH

1 ized contacts’ does not include contacts made

2 within the context of an authorized diplomatic

3 relationship. Failure by the employee to comply

4 with any of the requirements of this subsection

5 shall constitute grounds for denial or termi6 nation of access to the Top Secret information

7 concerned.

8 ‘‘(2) All employees granted access to Top Secret

9 information pursuant to this subsection shall also be

10 subject to—

11 ‘‘(A) additional background investigations

12 by appropriate governmental authorities during

13 the period of access at no less frequent interval

14 than every 5 years, except that any failure to

15 satisfy this requirement that is not solely attrib16 utable to the subject of the investigation shall

17 not result in a loss or denial of access; and

18 ‘‘(B) investigation by appropriate govern19 mental authority at any time during the period

20 of access to ascertain whether such persons

21 continue to meet the requirements for access.

22 ‘‘(3) Access to Top Secret information by cat23 egories of persons who do not meet the requirements

24 of paragraphs (1) and (2) of this section may be

25 permitted only where the President, or officials des-
7

•HR 4137 IH

1 ignated by the President for this purpose, determine

2 that such access is essential to protect or further the

3 national security interests of the United States.

4 ‘‘(4) A single office within the Executive branch

5 shall be designated to monitor the implementation

6 and operation of this title within the Executive

7 branch. This office shall submit an annual report to

8 the President and appropriate committees of the

9 Congress, describing the operation of this title and

10 recommending needed improvements. A copy of the

11 regulations implementing this title shall be provided

12 to the Select Committee on Intelligence of the Sen13 ate and the Permanent Select Committee on Intel14 ligence of the House of Representatives thirty days

15 prior to their effective date.

16 ‘‘WAIVERS FOR INDIVIDUAL CASES

17 ‘‘SEC. 803. In extraordinary circumstances, when es18 sential to protect or further the national security interests

19 of the United States, the President (or officials designated

20 by the President for this purpose) may waive the provi21 sions of this title, or the provisions of the regulations is22 sued pursuant to section 802, above, in individual cases

23 involving persons who are citizens of the United States

24 or are persons admitted into the United States for perma25 nent residence: Provided, That all such waivers shall be

26 made a matter of record and reported to the office des-
8

•HR 4137 IH

1 ignated pursuant to section 802(4), above, and shall be

2 available for review by the Select Committee on Intel3 ligence of the Senate and the Permanent Select Committee

4 on Intelligence of the House of Representatives.

5 ‘‘DEFINITIONS

6 ‘‘SEC. 804. For purposes of this title—

7 ‘‘(a) the term ‘national security’ refers to the

8 national defense and foreign relations of the United

9 States;

10 ‘‘(b) the phrases ‘information classified in the

11 interest of national security’ or ‘classified informa12 tion’ means any information originated by or on be13 half of the United States Government, the unauthor14 ized disclosure of which would cause damage to the

15 national security, which has been marked and is con16 trolled pursuant to the Executive Order 12356 of

17 April 2, 1982, or successor orders, or the Atomic

18 Energy Act of 1954;

19 ‘‘(c) the term ‘Top Secret information’ means

20 information classified in the interests of national se21 curity, the unauthorized disclosure of which would

22 cause exceptionally grave damage to the national se23 curity;

24 ‘‘(d) the term ‘employee’ includes any person

25 who receives a salary or compensation of any kind

26 from the United States Government, is a contractor
9

•HR 4137 IH

1 of the United States Government, is an unpaid con2 sultant of the United States Government, or other3 wise acts for or on behalf of the United States Gov4 ernment, but does not include the President or Vice

5 President of the United States, Members of the Con6 gress of the United States, Justices of the Supreme

7 Court or judges of other federal courts established

8 pursuant to Article III of the Constitution; and

9 ‘‘(e) the term ‘authorized investigative agency’

10 means an agency authorized by law or regulation to

11 conduct investigations of persons who are proposed

12 for access to Top Secret information to ascertain

13 whether such persons satisfy the criteria for obtain14 ing and retaining access to such information.

15 ‘‘EFFECTIVE DATE

16 ‘‘SEC. 805. This title shall take effect 180 days after

17 the date of its enactment.’’.

18 (b) The table of contents of the National Security Act

19 of 1947 is amended by adding at the end the following:

‘‘TITLE VIII—ACCESS TO TOP SECRET INFORMATION

‘‘Sec. 801. Eligibility for access to top secret information.

‘‘Sec. 802. Implementing regulations.

‘‘Sec. 803. Waivers for individual cases.

‘‘Sec. 804. Definitions.

‘‘Sec. 805. Effective date.’’.
10

•HR 4137 IH

1 SEC. 3. PROTECTION OF CRYPTOGRAPHIC INFORMATION.

2 (a) The National Security Act of 1947 (50 U.S.C.

3 401 et seq.), as amended by section 2, is further amended

4 by inserting at the end the following new title:

5 ‘‘TITLE IX—PROTECTION OF CRYPTOGRAPHIC

6 INFORMATION

7 ‘‘REQUIREMENTS FOR ACCESS TO CRYPTOGRAPHIC

8 INFORMATION

9 ‘‘SEC. 901. (a)(1) Any employee of a department or

10 agency within the Executive branch who is granted access

11 to classified cryptographic information or routine, recur12 ring access to any space in which classified cryptographic

13 key is produced or processed, or is assigned responsibilities

14 as a custodian of classified cryptographic key, shall, as a

15 condition of receiving such access or being assigned such

16 responsibilities and at a minimum:

17 ‘‘(A) Meet the requirements applicable to per18 sons having access to Top Secret information, as de19 fined in subsection 804(c) of this Act (as added by

20 section 2 of the Counterintelligence Improvements

21 Act of 1994).

22 ‘‘(B) be subject to periodic polygraph examina23 tions conducted by appropriate governmental au24 thorities, limited in scope to questions of a counter25 intelligence nature, during the period of access.
11

•HR 4137 IH

1 ‘‘(2) Failure to submit to an examination required

2 under paragraph (1) shall be grounds for removal from

3 access to cryptographic information or spaces.

4 ‘‘(3) No person shall be removed from access to cryp5 tographic information or spaces based solely upon the in6 terpretation of the results produced by a polygraph instru7 ment, measuring physiological resources, unless, after fur8 ther investigation, the head of the department or agency

9 concerned determines the risk to the national security in

10 permitting such access to be so potentially grave that ac11 cess must nonetheless be denied.

12 ‘‘(b) For purposes of this section—

13 ‘‘(1) the term ‘classified cryptographic informa14 tion’ means any information classified by the United

15 States Government pursuant to law or Executive

16 order concerning the details of (A) the nature, prep17 aration, or use of any code, cipher, or cryptographic

18 system of the United States; or (B) the design, con19 struction, use, maintenance, or repair of any cryp20 tographic equipment, except that such term does not

21 include information concerning the use of cryp22 tographic systems or equipment required for per23 sonal or office use;

24 ‘‘(2) the phrase ‘custodian of classified cryp25 tographic key’ means positions that require access to
12

•HR 4137 IH

1 classified cryptographic key beyond that required to

2 use or operate cryptographic equipment for personal

3 or office use, future editions of classified cryp4 tographic key, or classified cryptographic key used

5 for multiple devices;

6 ‘‘(3) the term ‘classified cryptographic key’

7 means any information (usually a sequence of ran8 dom binary digits), in any form, classified by the

9 United States Government pursuant to law or Exec10 utive order that is used to set up and periodically

11 change the operations performed by any cryp12 tographic equipment;

13 ‘‘(4) the term ‘cryptographic equipment’ means

14 any device, apparatus or appliance used, or pre15 pared, or planned for use by the United States for

16 the purpose of authenticating communications or

17 disguising or concealing the contents, significance,

18 or meanings of communications;

19 ‘‘(5) the term ‘employee’ includes any person

20 who receives a salary or compensation of any kind

21 from a department or agency of the Executive

22 branch, or is a contractor or unpaid consultant of

23 such department or agency;

24 ‘‘(6) the term ‘head of a department or agency’

25 refers to the highest official who exercises super-
13

•HR 4137 IH

1 visory control over the employee concerned, and does

2 not include any intermediate supervisory officials

3 who may otherwise qualify as heads of agencies

4 within departments; and

5 ‘‘(7) the phrase ‘questions of a counterintel6 ligence nature’ means questions specified to the sub7 ject in advance of a polygraph examination solely to

8 ascertain whether the subject is engaged in, or plan9 ning, espionage against the United States on behalf

10 of a foreign government or knows persons who are

11 so engaged.

12 ‘‘IMPLEMENTING REGULATIONS

13 ‘‘SEC. 902. The President shall, within 180 days of

14 the date of enactment of this title, promulgate regulations

15 to implement the provisions of this title. The President

16 shall provide copies of such regulations to the Select Com17 mittee on Intelligence of the Senate and the Permanent

18 Select Committee on Intelligence of the House of Rep19 resentatives.’’.

20 (b) The table of contents of the National Security Act

21 of 1947 is amended by adding at the end the following:

‘‘TITLE IX—PROTECTION OF CRYPTOGRAPHIC INFORMATION

‘‘Sec. 901. Requirements for access to cryptographic information.

‘‘Sec. 902. Implementing regulations.’’.
14

•HR 4137 IH

1 SEC. 4. AMENDMENT TO RIGHT TO FINANCIAL PRIVACY

2 ACT.

3 Section 1104 of the Right to Financial Privacy Act

4 of 1978 (12 U.S.C. 3404) is amended by adding at the

5 end thereof the following new subsection:

6 ‘‘(d)(1) Notwithstanding the provisions of subsection

7 (a), a customer who is the subject of a personnel security

8 investigation conducted by an authorized investigative

9 agency of the United States Government as a condition

10 of being granted or maintaining access to Top Secret in11 formation, as defined by section 804(c) of the National

12 Security Act of 1947 (as added by section 2 of the Coun13 terintelligence Improvements Act of 1994), may authorize

14 nonrevokable disclosure of all financial records maintained

15 by financial institutions for the period of the customer’s

16 access to such information and for up to 5 years after

17 access to such information has been terminated, by the

18 investigative agency responsible for the conduct of such

19 investigation, for an authorized security purpose.

20 ‘‘(2) Such authority shall be contained in a signed

21 and dated statement of the customer which identifies the

22 financial records which are authorized to be disclosed.

23 Such statement may also authorize the disclosure of finan24 cial records of accounts opened during the period covered

25 by the consent agreement which are not identifiable at the

26 time such consent is provided. A copy of such statement
15

•HR 4137 IH

1 shall be provided by the investigative agency concerned to

2 the financial institution from which disclosure is sought,

3 together with the certification required pursuant to section

4 1103(b) (12 U.S.C. 3403(b)).

5 ‘‘(3) The rights of the customer established by sub6 section (c), above, shall pertain to any disclosures made

7 pursuant to this subsection.

8 ‘‘(4) On an annual basis, the office designated by

9 President pursuant to section 802(4) of the National Se10 curity Act of 1947 (as added by section 2 of the Counter11 intelligence Improvements Act of 1994), shall fully inform

12 the Permanent Select Committee on Intelligence of the

13 House of Representatives and the Select Committee on In14 telligence of the Senate concerning the number of requests

15 for financial records made pursuant to this section.’’.

16 SEC. 5. NEW CRIMINAL OFFENSE FOR THE POSSESSION OF

17 ESPIONAGE DEVICES.

18 (a) IN GENERAL.—Chapter 37 of title 18, United

19 States Code, is amended by inserting at the end thereof

20 the following new section:

21 ‘‘POSSESSION OF ESPIONAGE DEVICES

22 ‘‘SEC. 799a. Whoever knowingly maintains possession

23 of any electronic, mechanical, or other device or equipment

24 the design and capability of which renders it primarily

25 useful for the purpose of surreptitiously collecting or com26 municating information, with the intent of utilizing such
16

•HR 4137 IH

1 device or equipment to undertake actions which would vio2 late section 793, 794, 794a (as added by section 6 of the

3 Counterintelligence Improvements Act of 1994), or 798 of

4 this title, or section 783(b) of title 50, United States Code,

5 shall be fined in accordance with this title or imprisoned

6 not more than 5 years, or both.’’.

7 (b) AMENDMENTS TO TABLE OF SECTIONS.—The

8 table of sections for chapter 37 of title 18, United States

9 Code, is amended by adding at the end thereof the follow10 ing new item:

‘‘799a. Possession of espionage devices.’’.

11 SEC. 6. NEW OFFENSE FOR SALE OR TRANSFER TO FOR12 EIGN GOVERNMENTS DOCUMENTS AND

13 OTHER MATERIALS DESIGNATED AS TOP SE14 CRET.

15 (a) IN GENERAL.—Chapter 37 of title 18, United

16 States Code, is amended by inserting after section 794 the

17 following new section:

18 ‘‘SALE OR TRANSFER OF DOCUMENTS OR MATERIALS

19 MARKED AS ‘TOP SECRET’

20 ‘‘SEC. 794a. (a)(1) No person shall knowingly sell or

21 otherwise transfer for any valuable consideration to any

22 person whom he knows or has reason to believe to be an

23 agent or representative of a foreign government—

24 ‘‘(A) any document, writing, code book, sketch,

25 photograph, map, model, instrument, equipment,
17

•HR 4137 IH

1 electronic storage media, or other material, or por2 tion thereof, knowing that it is marked or otherwise

3 designated in any manner, pursuant to applicable

4 law and Executive order, as ‘Top Secret’, or

5 ‘‘(B) any such document, writing, code book,

6 sketch, photograph, map, model, instrument, equip7 ment, electronic storage media, or other material, or

8 portion thereof, which has had such marking or des9 ignation removed without authority and the person

10 making the sale or transfer is aware of such re11 moval.

12 ‘‘(2) Paragraph (1) shall not be deemed to be violated

13 by a person who makes such transfer pursuant to applica14 ble law or executive branch authority.

15 ‘‘(b) In any prosecution under this section, whether

16 or not the information or material in question has been

17 properly marked or designated as ‘TOP SECRET’ pursu18 ant to applicable law or Executive order shall not be an

19 element of the offense: Provided, however, That it shall

20 be a defense to any prosecution under this section that

21 the information or document in question has been offi22 cially released to the public by an authorized representa23 tive of the United States prior to the sale or transfer in

24 question.
18

•HR 4137 IH

1 ‘‘(c) Violation of this section shall be punishable by

2 imprisonment for a maximum of 15 years.’’.

3 (b) AMENDMENTS TO TABLE OF SECTIONS.—The

4 table of sections for chapter 37 of title 18, United States

5 Code, is amended by inserting after the item relating to

6 section 794 the following new item:

‘‘794a. Sale or transfer of documents or materials marked as ‘Top Secret’.’’.

7 SEC. 7. LESSER CRIMINAL OFFENSE FOR THE REMOVAL OF

8 TOP SECRET DOCUMENTS BY GOVERNMENT

9 EMPLOYEES AND CONTRACTORS.

10 (a) IN GENERAL.—Chapter 93 of title 18, United

11 States Code, is amended by inserting at the end thereof

12 the following new section:

13 ‘‘REMOVAL AND RETENTION OF ‘TOP SECRET’

14 DOCUMENTS OR MATERIAL

15 ‘‘SEC. 1924. Whoever, being an officer, employee,

16 contractor or consultant, of the United States, and having,

17 by virtue of his office, employment, position, or contract,

18 becomes possessed of documents or materials classified at

19 the level of ‘Top Secret’ pursuant to applicable law or Ex20 ecutive order, knowingly removes such documents or mate21 rials without authority and retains such documents or ma22 terials at an unauthorized location shall be fined not more

23 than $1,000 (notwithstanding section 3571 of this title),

24 or imprisoned for not more than one year, or both.’’.
19

•HR 4137 IH

1 (b) AMENDMENT TO TABLE OF SECTIONS.—The

2 table of sections for chapter 93 of title 18, United States

3 Code, is amended by adding at the end thereof the follow4 ing new item:

‘‘1924. Removal of ‘Top Secret’ documents or material.’’.

5 SEC. 8. JURISDICTION OF UNITED STATES COURTS TO TRY

6 CASES INVOLVING ESPIONAGE OUTSIDE THE

7 UNITED STATES.

8 (a) Chapter 211 of title 18 of the United States Code

9 is amended by adding a new section 3239 as follows:

10 ‘‘§ 3239. Jurisdiction for espionage and related of11 fenses

12 ‘‘The trial for any offense involving a violation of—

13 ‘‘(a) section 793, 794, 794a (as added by sec14 tion 6 of the Counterintelligence Improvements Act

15 of 1994), 798, 798a (as added by section 5 of the

16 Counterintelligence Improvements Act of 1994), or

17 subsection 1030(a)(1) of this title;

18 ‘‘(b) section 601 of the National Security Act of

19 1947 as added by the Intelligence Identities Protec20 tion Act of 1982 (50 U.S.C. 421); or

21 ‘‘(c) subsections 4(b) or 4(c) of the Subversive

22 Activities Control Act of 1950 (U.S.C. 783(b) or

23 783(c));

24 begun or committed upon the high seas or elsewhere out

25 of the jurisdiction of any particular state or district, may
20

•HR 4137 IH

1 be prosecuted in the District of Columbia, or in the East2 ern District of Virginia, or in any other district authorized

3 by law.’’.

4 (b) The chapter analysis for chapter 211 of title 18

5 of the United States Code is amended by striking out

‘‘[3239. Repealed.]’’

6 and inserting in lieu thereof:

‘‘3239. Jurisdiction for espionage and related offenses.’’.

7 SEC. 9. EXPANSION OF EXISTING STATUTE REGARDING

8 FORFEITURE OF COLLATERAL PROFITS OF

9 CRIME TO ADDITIONAL ESPIONAGE OF10 FENSES.

11 Section 3681 of title 18, United States Code, is

12 amended—

13 (1) in subsection (a), by striking out ‘‘section

14 794 of this title’’ and inserting in lieu thereof ‘‘sec15 tions 793, 794, 794a (as added by section 6 of the

16 Counterintelligence Improvements Act of 1994),

17 798, and 799a (as added by section 5 of the Coun18 terintelligence Improvements Act of 1994) of this

19 title and section 783 of title 50, United States

20 Code’’; and

21 (2) by adding at the end thereof the following

22 new subsection:

23 ‘‘(e) For purposes of this section, convictions pursu24 ant to military courts-martial for offenses comparable to
21

•HR 4137 IH

1 violations of sections 793, 794, 794a (as added by section

2 6 of the Counterintelligence Improvements Act of 1994),

3 798, and 799a (as added by section 5 of the Counterintel4 ligence Improvements Act of 1994) of this title, or a viola5 tion of section 783 of title 50, or convictions by foreign

6 courts for offenses which, if perpetrated within the United

7 States, would constitute offenses under sections 793, 794,

8 794a (as added by section 6 of the Counterintelligence Im9 provements Act of 1994), 798, and 799a (as added by sec10 tion 5 of the Counterintelligence Improvements Act of

11 1994) of this title, or a violation of section 783 of title

12 50 shall be considered as convictions for which actions

13 may be ordered pursuant to this section.’’.

14 SEC. 10. DENIAL OF ANNUITIES OR RETIRED PAY TO PER15 SONS CONVICTED OF ESPIONAGE IN FOR16 EIGN COURTS INVOLVING UNITED STATES IN17 FORMATION.

18 Section 8312 of title 5, United States Code, is

19 amended by adding at the end thereof the following new

20 subsection:

21 ‘‘(d) For purposes of subsections (b)(1) and (c)(1),

22 an offense within the meaning of such subsections is es23 tablished if the Attorney General certifies to the agency

24 employing or formerly employing the person concerned—
22

•HR 4137 IH

1 ‘‘(2) that an individual subject to this chapter

2 has been convicted by an impartial court of appro3 priate jurisdiction within a foreign country in cir4 cumstances in which the conduct violates the provi5 sions of law enumerated in subsections (b)(1) and

6 (c)(1), or would violate such provisions, had such

7 conduct taken place within the United States, and

8 that such conviction is not being appealed or that

9 final action has been taken on such appeal;

10 ‘‘(3) that such conviction was obtained in ac11 cordance with procedures that provided the defend12 ant due process rights comparable to such rights

13 provided by the United States Constitution, and

14 such conviction was based upon evidence which

15 would have been admissible in the courts of the

16 United States; and

17 ‘‘(4) that such conviction occurred after the

18 date of enactment of this subsection.

19 Any certification made pursuant to this subsection shall

20 be subject to review by the United States Court of Claims

21 based upon the application of the individual concerned, or

22 his or her attorney, alleging that any of the conditions set

23 forth in paragraphs (1), (2), (3), herein, as certified by

24 the Attorney General, have not been satisfied in his or

25 her particular circumstances. Should the court determine
23

•HR 4137 IH

1 that any of these conditions has not been satisfied in such

2 case, the court shall order any annuity or retirement bene3 fit to which the person concerned is entitled to be restored

4 and shall order that any payments which may have been

5 previously denied or withheld to be paid by the department

6 or agency concerned.’’.

7 SEC. 11. AUTHORIZING THE FBI TO OBTAIN CONSUMER RE8 PORTS ON PERSONS BELIEVED TO BE

9 AGENTS OF FOREIGN POWERS.

10 Section 608 of the Consumer Credit Protection Act

11 (15 U.S.C. 1681f) is amended—

12 (1) by inserting ‘‘(a)’’ before ‘‘Notwithstand13 ing’’; and

14 (2) by inserting at the end thereof the following

15 new subsections:

16 ‘‘(b) Notwithstanding the provisions of section 604,

17 a consumer reporting agency shall, upon request, furnish

18 a consumer report to the Federal Bureau of Investigation,

19 if the Director of the Federal Bureau of Investigation, or

20 the Director’s designee, certifies in writing to the

21 consumer reporting agency that such records are sought

22 in connection with an authorized foreign counterintel23 ligence investigation and that there are specific and

24 articulable facts giving reason to believe that the person

25 to whom the requested consumer report relates is an agent
24

•HR 4137 IH

1 of a foreign power, as defined in section 101 of the For2 eign Intelligence Surveillance Act of 1978 (50 U.S.C.

3 1801).

4 ‘‘(c) Notwithstanding the provisions of section 604,

5 a consumer reporting agency shall furnish identifying in6 formation respecting any consumer, limited to name, ad7 dress, former addresses, places of employment, or former

8 places of employment, to a representative of the Federal

9 Bureau of Investigation when presented with a written re10 quest signed by the Director of the Federal Bureau of In11 vestigation, or the Director’s designee, stating that the in12 formation is necessary to the conduct of an authorized for13 eign counterintelligence investigation.

14 ‘‘(d) No consumer reporting agency, or officer, em15 ployee, or agent of such institution shall disclose to any

16 person that the Federal Bureau of Investigation has

17 sought or obtained a consumer report or identifying infor18 mation respecting any consumer under this section.

19 ‘‘(e) On an annual basis the Director of the Federal

20 Bureau of Investigation shall fully inform the Permanent

21 Select Committee on Intelligence of the House of Rep22 resentatives and the Select Committee on Intelligence of

23 the Senate concerning all requests made under subsections

24 (b) and (c).’’.
25

•HR 4137 IH

1 SEC. 12. TO PROVIDE FOR REWARDS FOR INFORMATION

2 CONCERNING ESPIONAGE.

3 (a) IN GENERAL.—Chapter 204 of title 18, United

4 States Code, is amended—

5 (1) by inserting at the end of the chapter head6 ing ‘‘AND ESPIONAGE’’;

7 (2) in section 3071, by inserting ‘‘(a)’’ imme8 diately before ‘‘With respect to’’;

9 (3) in section 3071, adding at the end thereof

10 the following new subsection:

11 ‘‘(b) With respect to acts of espionage involving or

12 directed at United States information classified in the in13 terest of national security, the Attorney General may re14 ward any individual who furnishes information—

15 ‘‘(1) leading to the arrest or conviction, in any

16 country, of any individual or individuals for commis17 sion of an act of espionage against the United

18 States;

19 ‘‘(2) leading to the arrest or conviction, in any

20 country, of any individual or individuals for conspir21 ing or attempting to commit an act of espionage

22 against the United States; or

23 ‘‘(3) leading to the prevention or frustration of

24 an act of espionage against the United States.’’.
26

•HR 4137 IH

1 (b) AMOUNT OF REWARDS.—Section 3072 of title 18,

2 United States Code, is amended by striking out

3 ‘‘$500,000’’ and inserting in lieu thereof ‘‘$1,000,000’’.

4 (c) DEFINITIONS.—Section 3077 of title 18, United

5 States Code, is amended by inserting at the end thereof

6 the following new paragraphs:

7 ‘‘(8) ‘act of espionage’ means an activity that is

8 a violation of sections 794, 794a (as added by sec9 tion 6 of the Counterintelligence Improvements Act

10 of 1994), 798, or 799a (as added by section 5 of the

11 Counterintelligence Improvements Act of 1994) of

12 this title or section 783 of title 50, United States

13 Code.

14 ‘‘(9) ‘United States information classified in the

15 interests of national security’ means information

16 originated, owned, or possessed by the United States

17 Government concerning the national defense and for18 eign relations of the United States that has been de19 termined pursuant to law or Executive order to re20 quire protection against unauthorized disclosure and

21 that has been so designated.’’.
27

•HR 4137 IH

1 SEC. 13. TO PROVIDE A COURT ORDER PROCESS FOR PHYS2 ICAL SEARCHES UNDERTAKEN FOR FOREIGN

3 INTELLIGENCE PURPOSES.

4 (a) The Foreign Intelligence Surveillance Act of 1978

5 is amended by inserting at the end thereof the following

6 new title:

7 ‘‘TITLE IV—PHYSICAL SEARCHES WITHIN THE

8 UNITED STATES FOR FOREIGN INTEL9 LIGENCE PURPOSES

10 ‘‘AUTHORIZATION OF PHYSICAL SEARCHES FOR FOREIGN

11 INTELLIGENCE PURPOSES

12 ‘‘SEC. 401. (a) Applications for a court order under

13 this title are authorized if the President has, in writing,

14 empowered the Attorney General to approve applications

15 to the Foreign Intelligence Surveillance Court, and a judge

16 of that court to whom application is made may, notwith17 standing any other law, grant an order, in conformity with

18 section 403, approving a physical search in the United

19 States, for the purpose of collecting foreign intelligence in20 formation of—

21 ‘‘(1) the property, information or material of a

22 foreign power as defined in section 101(a)(1), (2),

23 and (3) of this Act, or

24 ‘‘(2) the premises, property, information or ma25 terial of an agent of a foreign power or a foreign
28

•HR 4137 IH

1 power as defined in section 101(a)(4), (5), and (6)

2 of this Act.

3 ‘‘(b) The Foreign Intelligence Surveillance Court

4 shall have jurisdiction to hear applications for and grant

5 orders approving a physical search for the purpose of ob6 taining foreign intelligence information anywhere within

7 the United States under the procedures set forth in this

8 title, except that no judge shall hear the same application

9 which has been denied previously by another judge. If any

10 judge denies an application for an order authorizing a

11 physical search under this title, such judge shall provide

12 immediately for the record a written statement of each

13 reason for his decision and, on motion of the United

14 States, the record shall be transmitted, under seal, to the

15 Court of Review.

16 ‘‘(c) The Court of Review shall have jurisdiction to

17 review the denial of any application made under this title.

18 If such court determines that the application was properly

19 denied, the Court shall immediately provide for the record

20 a written statement of each reason for its decision and,

21 on petition of the United States for a writ of certiorari,

22 the record shall be transmitted under seal to the Supreme

23 Court, which shall have jurisdiction to review such deci24 sion.
29

•HR 4137 IH

1 ‘‘(d) Judicial proceedings under this title shall be con2 cluded as expeditiously as possible. The record of proceed3 ings under this title, including applications made and or4 ders granted, shall be maintained under security measures

5 established by the Chief Justice of the United States in

6 consultation with the Attorney General and the Director

7 of Central Intelligence.

8 ‘‘APPLICATION FOR AN ORDER

9 ‘‘SEC. 402. (a) Each application for an order approv10 ing a physical search under this title shall be made by

11 a Federal officer in writing upon oath or affirmation to

12 a judge of the Foreign Intelligence Surveillance Court.

13 Each application shall require the approval of the Attor14 ney General based upon the Attorney General’s finding

15 that it satisfied the criteria and requirements for such ap16 plication as set forth in this title. It shall include—

17 ‘‘(1) the identity, if known, or a description of

18 the target of the search;

19 ‘‘(2) the authority conferred on the Attorney

20 General by the President of the United States and

21 the approval of the Attorney General to make the

22 application;

23 ‘‘(3) the identity of the Federal officer making

24 the application and a detailed description of the

25 premises or property to be searched and of the infor-
30

•HR 4137 IH

1 mation, material, or property to be seized, repro2 duced, or altered;

3 ‘‘(4) a statement of the facts and circumstances

4 relied upon by the applicant to justify the appli5 cant’s belief that—

6 ‘‘(A) the target of the physical search is a

7 foreign power or an agent of a foreign power;

8 ‘‘(B) the premises or property to be

9 searched contains foreign intelligence informa10 tion;

11 ‘‘(C) the premises or property to be

12 searched is owned, used, possessed by, or is in

13 transit to or from a foreign power or an agent

14 of a foreign power;

15 ‘‘(5) a statement of the proposed minimization

16 procedures;

17 ‘‘(6) a statement of the manner in which the

18 physical search is to be conducted;

19 ‘‘(7) a statement of the facts concerning all pre20 vious applications that have been made to any judge

21 under this title involving any of the persons, prem22 ises, or property specified in the application, and the

23 action taken on each previous applications;

24 ‘‘(8) a statement of the facts concerning any

25 search described in section 406(b), below, which in-
31

•HR 4137 IH

1 volves any of the persons, premises, or property

2 specified in the application; and

3 ‘‘(9) a statement that the purpose of the phys4 ical search is to obtain foreign intelligence informa5 tion.

6 ‘‘(b) The judge may require the applicant to furnish

7 such other information as may be necessary to make the

8 determinations required by section 403.

9 ‘‘ISSUANCE OF AN ORDER

10 ‘‘SEC. 403. (a) Upon an application made pursuant

11 to section 402, the judge shall enter an ex parte order

12 as requested or as modified approving the physical search

13 if the judge finds that—

14 ‘‘(1) the President has authorized the Attorney

15 General to approve applications for physical searches

16 for foreign intelligence purposes;

17 ‘‘(2) the application has been made by a Fed18 eral officer and approved by the Attorney General;

19 ‘‘(3) on the basis of the facts submitted by the

20 applicant there is probable cause to believe that—

21 ‘‘(A) the target of the physical search is a

22 foreign power or an agent of a foreign power:

23 Provided, That no United States person may be

24 considered an agent of a foreign power solely

25 upon the basis of activities protected by the
32

•HR 4137 IH

1 first amendment to the Constitution of the

2 United States;

3 ‘‘(B) the premises or property to be

4 searched are owned, used, possessed by, or is in

5 transit to or from an agent of a foreign power

6 or a foreign power; and

7 ‘‘(C) physical search of such premises or

8 property can reasonably be expected to yield

9 foreign intelligence information which cannot

10 reasonably be obtained by normal investigative

11 means; and

12 ‘‘(4) the proposed minimization procedures

13 meet the definition of minimization contained in this

14 title; and

15 ‘‘(5) the application which has been filed con16 tains all statements required by section 402.

17 ‘‘(b) An order approving a physical search under this

18 section shall—

19 ‘‘(1) specify—

20 ‘‘(A) the Federal officer or officers author21 ized to conduct the physical search and the

22 identity, if known, or a description of the target

23 of the physical search;
33

•HR 4137 IH

1 ‘‘(B) the premises or property to be

2 searched and the information, material, or

3 property to be seized, altered, or reproduced;

4 ‘‘(C) the type of foreign intelligence infor5 mation sought to be acquired; and

6 ‘‘(D) a statement of the manner in which

7 the physical search is to be conducted and,

8 whenever more than one physical search is au9 thorized under the order, the authorized scope

10 of each search and what minimization proce11 dures shall apply to the information acquired by

12 each search;

13 ‘‘(2) direct—

14 ‘‘(A) that the minimization procedures be

15 followed;

16 ‘‘(B) that, upon the request of the appli17 cant, a specified landlord, custodian, or other

18 specified person furnish the applicant forthwith

19 all information, facilities, or assistance nec20 essary to accomplish the physical search in such

21 a manner as will protect its secrecy and

22 produce a minimum of interference with the ac23 tivities of the landlord, custodian, or other per24 son; and that such landlord, custodian or other

25 person maintain under security procedures ap-
34

•HR 4137 IH

1 proved by the Attorney General and the Direc2 tor of Central Intelligence any records concern3 ing the search or the aid furnished that such

4 person wishes to retain;

5 ‘‘(C) that the physical search be under6 taken within 30 days of the date of the order,

7 or, if the physical search is of the property, in8 formation or material of a foreign power as de9 fined in section 101(a)(1), (2), or (3) of this

10 Act, that such search be undertaken within one

11 year of the order; and

12 ‘‘(D) that the Federal officer conducting

13 the physical search promptly report to the court

14 the circumstances and results of the physical

15 search.

16 ‘‘(c) At any time after a physical search has been car17 ried out, the judge to whom the return has been made

18 may assess compliance with the minimization procedures

19 by reviewing the circumstances under which information

20 concerning United States persons was acquired, retained,

21 or disseminated.

22 ‘‘(d) Application made and orders granted under this

23 title shall be retained for a period of at least ten years

24 from the date of the application.
35

•HR 4137 IH

1 ‘‘(e) Not more than 60 days after a physical search

2 of the residence of a United States person authorized by

3 this title, or such a search in the circumstances described

4 in section 406(b), has been conducted, the Attorney Gen5 eral shall provide the United States person with an inven6 tory which shall include—

7 ‘‘(1) existence or not of a court order authoriz8 ing the physical search and the date of the order;

9 ‘‘(2) the date of the physical search and an

10 identification of the premises or property searched;

11 and

12 ‘‘(3) a list of any information, material, or

13 property seized, altered, or reproduced.

14 ‘‘(f) On an ex parte showing of good cause by the

15 Attorney General to a judge of the Foreign Intelligence

16 Surveillance Court the provision of the inventory required

17 by subsection (e) may be postponed for a period not to

18 exceed 90 days. At the end of such period the provision

19 of the inventory may, upon a similar showing, be post20 poned indefinitely. The denial of a request for such post21 ponements may be reviewed as provided in section 401.

22 ‘‘USE OF INFORMATION

23 ‘‘SEC. 404. (a) Information acquired from a physical

24 search conducted pursuant to this title concerning any

25 United States person may be used and disclosed by Fed26 eral officers and employees without the consent of the
36

•HR 4137 IH

1 United States person only in accordance with the mini2 mization procedures required by this title. No information

3 acquired from a physical search pursuant to this title may

4 be used or disclosed by Federal officers or employees ex5 cept for lawful purposes.

6 ‘‘(b) No information acquired pursuant to this title

7 shall be disclosed for law enforcement purposes unless

8 such disclosure is accompanied by a statement that such

9 information, or any information derived therefrom, may

10 only be used in a criminal proceeding with the advance

11 authorization of the Attorney General.

12 ‘‘(c) Whenever the United States intends to enter into

13 evidence or otherwise use or disclose in any trial, hearing,

14 or other proceeding in or before any court, department,

15 officer, agency, regulatory body, or other authority of the

16 United States, against an aggrieved person, any informa17 tion obtained or derived from a physical search of the

18 premises or property of that aggrieved person pursuant

19 to the authority of this title, the United States shall, prior

20 to the trial, hearing, or the other proceeding or at a rea21 sonable time prior to an effort to so disclose or so use

22 that information or submit it in evidence, notify the ag23 grieved person and the court or other authority in which

24 the information is to be disclosed or used that the United

25 States intends to so disclose or so use such information.
37

•HR 4137 IH

1 ‘‘(d) Whenever any State or political subdivision

2 thereof intends to enter into evidence or otherwise use of

3 disclose in any trial, hearing, or other proceeding in or

4 before any court, department, officer, agency, regulatory

5 body, or other authority of a State or a political subdivi6 sion thereof against an aggrieved person any information

7 obtained or derived from a physical search of the premises

8 or property of that aggrieved person pursuant to the au9 thority of this title, the State or political subdivision there10 of shall notify the aggrieved person, the court or other

11 authority in which the information is to be disclosed or

12 used, and the Attorney General that the State or political

13 subdivision thereof intends to so disclose or so use such

14 information.

15 ‘‘(e) Any person against whom evidence obtained or

16 derived from a physical search to which he is an aggrieved

17 person is to be, or has been, introduced or otherwise used

18 or disclosed in any trial, hearing, or other proceeding in

19 or before any court, department, officer, agency, regu20 latory body, or other authority of the United States, a

21 State, or a political subdivision thereof, may move to sup22 press the evidence obtained or derived from such search

23 on the grounds that—

24 ‘‘(1) the information was unlawfully acquired;

25 or
38

•HR 4137 IH

1 ‘‘(2) the physical search was not made in con2 formity with an order of authorization or approval.

3 Such a motion shall be made before the trial, hearing, or

4 other proceeding unless there was no opportunity to make

5 such a motion or the person was not aware of the grounds

6 of the motion.

7 ‘‘(f) Whenever a court of other authority is notified

8 pursuant to subsection (c) or (d), or whenever a motion

9 is made pursuant to subsection (e), or whenever any mo10 tion or request is made by an aggrieved person pursuant

11 to any other statute or rule of the United States or any

12 State before any court or other authority of the United

13 States or any State to discover or obtain applications or

14 orders or other materials relating to a physical search au15 thorized by this title or to discover, obtain, or suppress

16 evidence or information obtained or derived from a phys17 ical search authorized by this title, the United States dis18 trict court or, where the motion is made before another

19 authority, the United States district court in the same dis20 trict as the authority shall, notwithstanding any other law,

21 if the Attorney General files an affidavit under oath that

22 disclosure or an adversary hearing would harm the na23 tional security of the United States, review in camera and

24 ex parte the application, order, and such other materials

25 relating to the physical search as may be necessary to de-
39

•HR 4137 IH

1 termine whether the physical search of the aggrieved per2 son was lawfully authorized and conducted. In making this

3 determination, the court may disclose to the aggrieved per4 son, under appropriate security procedures and protective

5 orders, portions of the application, order, or other mate6 rials relating to the physical search only where such disclo7 sure is necessary to make an accurate determination of

8 the legality of the physical search.

9 ‘‘(g) If the United States district court pursuant to

10 subsection (f) determines that the physical search was not

11 lawfully authorized or conducted, it shall, in accordance

12 with the requirements of law, suppress the evidence which

13 was unlawfully obtained or derived from the physical

14 search of the aggrieved person or otherwise grant the mo15 tion of the aggrieved person. If the court determines that

16 the physical search was lawfully authorized or conducted,

17 it shall deny the motion of the aggrieved person except

18 to the extent that due process requires discovery or disclo19 sure.

20 ‘‘(h) Orders granting motions or requests under sub21 section (g), decisions under this section that a physical

22 search was not lawfully authorized or conducted, and or23 ders of the United States district court requiring review

24 or granting disclosure of applications, orders or other ma25 terials relating to the physical search shall be final orders
40

•HR 4137 IH

1 and binding upon all courts of the United States and the

2 several States except a United States court of appeals and

3 the Supreme Court.

4 ‘‘(i) The provisions of this section regarding the use

5 or disclosure of information obtained or derived from a

6 physical search shall apply to information obtained or de7 rived from a search conducted without a court order to

8 obtain foreign intelligence information which is not a phys9 ical search as defined in this title solely because the exist10 ence of exigent circumstances would not require a warrant

11 for law enforcement purposes.

12 ‘‘OVERSIGHT

13 ‘‘SEC. 405. (a) On a semiannual basis the Attorney

14 General shall fully inform the House Permanent Select

15 Committee on Intelligence and the Senate Select Commit16 tee on Intelligence concerning all physical searches con17 ducted pursuant to this title, and all other searches, except

18 those reported under section 108 of this Act, conducted

19 in the United States for foreign intelligence purposes. On

20 an annual basis the Attorney General shall also provide

21 to those committees a report setting forth with respect to

22 the preceding calendar year—

23 ‘‘(1) the total number of applications made for

24 orders approving physical searches under this title;

25 and
41

•HR 4137 IH

1 ‘‘(2) the total number of such orders either

2 granted, modified, or denied.

3 ‘‘(b) Whenever a search is conducted without a court

4 order to obtain foreign intelligence information which is

5 not a physical search as defined in this title solely because

6 the existence of exigent circumstances would not require

7 a warrant for law enforcement purposes, a full report of

8 such search, including a description of the exigent cir9 cumstances, shall be maintained by the Attorney General.

10 Each such report shall be transmitted to the Foreign In11 telligence Surveillance Court promptly after the search is

12 conducted.

13 ‘‘AUTHORITY FOR INTELLIGENCE SEARCHES

14 ‘‘SEC. 406. (a) The procedures contained in this title

15 shall be the exclusive means by which a physical search,

16 as defined in this title, may be conducted in the United

17 States for foreign intelligence purposes, and an order is18 sued under this title authorizing a physical search shall

19 constitute a search warrant authorized by law for purposes

20 of any other law.

21 ‘‘(b) Searches conducted in the United States to col22 lect foreign intelligence information, other than physical

23 searches as defined in this title and electronic surveillance

24 as defined in this Act, and physical searches conducted

25 in the United States without a court order to collect for26 eign intelligence information may be conducted only pur-
42

•HR 4137 IH

1 suant to regulations issued by the Attorney General. Such

2 regulations, and any changes thereto, shall be provided to

3 the Select Committee on Intelligence of the Senate and

4 the Permanent Select Committee on Intelligence of the

5 House of Representatives at least 14 days prior to the tak6 ing effect. Any regulations issued by the Attorney General

7 regarding such searches which were in effect as of June

8 1, 1990, shall be deemed to be regulations required by

9 this subsection.

10 ‘‘PENALTIES

11 ‘‘SEC. 407. (a) OFFENSE.—A person is guilty of an

12 offense if he intentionally—

13 ‘‘(1) under color of law for the purpose of ob14 taining foreign intelligence information, engages in

15 physical search within the United States except as

16 authorized by statute; or

17 ‘‘(2) discloses or uses information obtained

18 under color of law by physical search within the

19 United States, knowing or having reason to know

20 that the information was obtained through physical

21 search not authorized by statute, for the purpose of

22 obtaining intelligence information.

23 ‘‘(b) DEFENSE.—It is a defense to a prosecution

24 under subsection (a) that the defendant was a law enforce25 ment or investigative officer engaged in the course of his

26 official duties and the physical search was authorized by
43

•HR 4137 IH

1 and conducted pursuant to a search warrant or court

2 order of a court of competent jurisdiction.

3 ‘‘(c) PENALTY.—An offense described in this section

4 is punishable by a fine in accordance with title 18, United

5 States Code, or imprisonment for not more than five

6 years, or both.

7 ‘‘(d) JURISDICTION.—There is Federal jurisdiction

8 over an offense under this section if the person committing

9 the offense was an officer or employee of the United States

10 at the time the offense was committed.

11 ‘‘CIVIL LIABILITY; CIVIL ACTION

12 ‘‘SEC. 408. An aggrieved person, other than a foreign

13 power or an agent of a foreign power, as defined in section

14 101 (a) or (b)(1)(A), respectively, of this Act, whose prem15 ises, property, information, or material has been subjected

16 to a physical search within the United States or about

17 whom information obtained by such a physical search has

18 been disclosed or used in violation of section 407 shall

19 have a cause of action against any person who committed

20 such violation and shall be entitled to recover—

21 ‘‘(a) actual damages;

22 ‘‘(b) punitive damages; and

23 ‘‘(c) reasonable attorney’s fees and other inves24 tigative and litigation costs reasonably incurred.

25 ‘‘DEFINITIONS

26 ‘‘9. AS USED IN THIS TITLE:
44

•HR 4137 IH

1 ‘‘(a) The terms ‘foreign power,’ ‘agent of a for2 eign power,’ ‘international terrorism,’ ‘sabotage,’

3 ‘foreign intelligence information,’ ‘Attorney General,’

4 ‘United States person,’ ‘United States’,’ ‘person,’

5 and ‘State’ shall have the same meaning as in Sec6 tion 101 of this Act.

7 ‘‘(b) ‘Physical search’ means any physical intru8 sion into premises or property (including examina9 tion of the interior of property by technical means)

10 or any seizure, reproduction or alteration of infor11 mation, material or property, under circumstances in

12 which a person has a reasonable expectation of pri13 vacy and a warrant would be required for law en14 forcement purposes, but does not include ‘electronic

15 surveillance’ as defined in subsection 101(f) of this

16 Act.

17 ‘‘(c) ‘Minimization procedures’ with respect to

18 physical search, means—

19 ‘‘(1) specific procedures, which shall be

20 adopted by the Attorney General, that are rea21 sonably designed in light of the purposes and

22 technique of the particular physical search, to

23 minimize the acquisition and retention, and pro24 hibit the dissemination, of non-publicly available

25 information concerning unconsenting United
45

•HR 4137 IH

1 States persons consistent with the need of the

2 United States to obtain, produce, and dissemi3 nate foreign intelligence information;

4 ‘‘(2) procedures that require that non-pub5 licly available information, which is not foreign

6 intelligence information, as defined in sub7 section 101(e)(1) of this Act, shall not be dis8 seminated in a manner that identifies any

9 United States person, without such person’s

10 consent, unless such person’s identity is nec11 essary to understand such foreign intelligence

12 information or assess its importance; and

13 ‘‘(3) notwithstanding paragraphs (1) and

14 (2), procedures that allow for the retention and

15 dissemination of information that is evidence of

16 a crime which has been, is being, or is about to

17 be committed and that is to be retained or dis18 seminated for law enforcement purposes.

19 ‘‘(d) ‘Aggrieved person’ means a person whose

20 premises, property, information, or material is the

21 target of physical search or any other person whose

22 premises, property, information, or material was

23 subject to physical search.
46

•HR 4137 IH

1 ‘‘(e) ‘Foreign Intelligence Surveillance Court’

2 means the court established by section 103(a) of this

3 Act.

4 ‘‘(f) ‘Court of Review’ means the court estab5 lished by section 103(b) of this Act.

6 ‘‘EFFECTIVE DATE

7 ‘‘SEC. 410. The provisions of this title shall become

8 effective 90 days after the date of enactment of this title,

9 except that any physical search approved by the Attorney

10 General to gather foreign intelligence information shall

11 not be deemed unlawful for failure to follow the procedures

12 of this title, if that search is conducted within 180 days

13 following the date of enactment of this title pursuant to

14 regulations issued by the Attorney General, which are in

15 the possession of the Select Committee on Intelligence of

16 the Senate and the Permanent Select Committee on Intel17 ligence of the House of Representatives prior to the date

18 of enactment of this title.’’.

19 (b) The table of contents of the Foreign Intelligence

20 Surveillance Act of 1978 is amended by adding at the end

21 the following:

‘‘TITLE IV—PHYSICAL SEARCHES WITHIN THE UNITED STATES

FOR FOREIGN INTELLIGENCE PURPOSES

‘‘Sec. 401. Authorization of physical searches for foreign intelligence purposes.

‘‘Sec. 402. Application for an order .

‘‘Sec. 403. Issuance of an order.

‘‘Sec. 404. Use of information.

‘‘Sec. 405. Oversight.
47

•HR 4137 IH

‘‘Sec. 406. Authority for intelligence searches.

‘‘Sec. 407. Penalties.

‘‘Sec. 408. Civil liability.

‘‘Sec. 409. Definitions.

‘‘Sec. 410. Effective date.’’.

Æ

HR 4137 IH——2

HR 4137 IH——3

HR 4137 IH——4