I 

111TH CONGRESS 

1ST SESSION H. R. 3846 

To amend the Foreign Intelligence Surveillance Act of 1978 to provide 

additional civil liberties protections, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

OCTOBER 20, 2009 

Mr. CONYERS (for himself, Mr. NADLER of New York, Mr. SCOTT of Virginia, 

Mr. COHEN, Ms. JACKSON-LEE of Texas, and Mr. JOHNSON of Georgia) 

introduced the following bill; which was referred to the Committee on the 

Judiciary, and in addition to the Select Committee on Intelligence (Permanent Select), for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned 

A BILL 

To amend the Foreign Intelligence Surveillance Act of 1978 

to provide additional civil liberties protections, 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 ‘‘FISA Amendments 

5 Act of 2009’’. 


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1 SEC. 2. REPEAL OF TELECOMMUNICATIONS IMMUNITY. 

2 (a) IN GENERAL.—The Foreign Intelligence Surveil3 lance Act of 1978 is amended by striking title VIII (50 

4 U.S.C. 1885 et seq.). 

5 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

6 The table of contents in the first section of the Foreign 

7 Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et 

8 seq.) is amended by striking the items relating to title VIII 

9 and sections 801, 802, 803, and 804. 

10 SEC. 3. PROHIBITION ON BULK COLLECTION UNDER FISA 

11 AMENDMENTS ACT. 

12 Section 702(g)(2)(A) of the Foreign Intelligence Sur13 veillance Act of 1978 (50 U.S.C. 1881a(g)(2)(A)) is 

14 amended— 

15 (1) in clause (vi), by striking ‘‘and’’ at the end; 

16 (2) by redesignating clause (vii) as clause (viii); 

17 and 

18 (3) by inserting after clause (vi) the following: 

19 ‘‘(vii) the acquisition of the contents 

20 (as that term is defined in section 2510(8) 

21 of title 18, United States Code) of any 

22 communication is limited to communica23 tions to which any party is an individual 

24 target (which shall not be limited to known 

25 or named individuals) who is reasonably 

26 believed to be located outside of the United 


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1 States, and a significant purpose of the ac2 quisition of the communications of the tar3 get is to obtain foreign intelligence infor4 mation; and’’. 

5 SEC. 4. PROHIBITION ON REVERSE TARGETING UNDER 

6 FISA AMENDMENTS ACT. 

7 Section 702 of the Foreign Intelligence Surveillance 

8 Act of 1978 (50 U.S.C. 1881a) is amended— 

9 (1) in subsection (b)(2), by striking ‘‘the pur10 pose’’ and all that follows and inserting the fol11 lowing: ‘‘a significant purpose of the acquisition is to 

12 acquire the communications of a particular, known 

13 person reasonably believed to be located in the 

14 United States, except in accordance with title I;’’; 

15 (2) in subsection (d)(1)(A)— 

16 (A) by striking ‘‘ensure that’’ and insert 

17 the following: ‘‘ensure— 

18 ‘‘(i) that’’; and 

19 (B) by adding at the end the following: 

20 ‘‘(ii) that an application is filed under 

21 title I, if otherwise required, when a sig22 nificant purpose of an acquisition author23 ized under subsection (a) is to acquire the 

24 communications of a particular, known 


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1 person reasonably believed to be located in 

2 the United States; and’’; 

3 (3) in subsection (g)(2)(A)(i)(I)— 

4 (A) by striking ‘‘ensure that’’ and insert 

5 the following: ‘‘ensure— 

6 ‘‘(aa) that’’; and 

7 (B) by adding at the end the following: 

8 ‘‘(bb) that an application is 

9 filed under title I, if otherwise re10 quired, when a significant pur11 pose of an acquisition authorized 

12 under subsection (a) is to acquire 

13 the communications of a par14 ticular, known person reasonably 

15 believed to be located in the 

16 United States; and’’; and 

17 (4) in subsection (i)(2)(B)(i)— 

18 (A) by striking ‘‘ensure that’’ and insert 

19 the following: ‘‘ensure— 

20 ‘‘(I) that’’; and 

21 (B) by adding at the end the following: 

22 ‘‘(II) that an application is filed 

23 under title I, if otherwise required, 

24 when a significant purpose of an ac25 quisition authorized under subsection 


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1 (a) is to acquire the communications 

2 of a particular, known person reason3 ably believed to be located in the 

4 United States; and’’. 

5 SEC. 5. LIMITS ON USE OF UNLAWFULLY OBTAINED INFOR6 MATION UNDER FISA AMENDMENTS ACT. 

7 Section 702(i)(3) of the Foreign Intelligence Surveil8 lance Act of 1978 (50 U.S.C. 1881a(i)(3)) is amended by 

9 striking subparagraph (B) and inserting the following: 

10 ‘‘(B) CORRECTION OF DEFICIENCIES.— 

11 ‘‘(i) IN GENERAL.—If the Court finds 

12 that a certification required by subsection 

13 (g) does not contain all of the required ele14 ments, or that the procedures required by 

15 subsections (d) and (e) are not consistent 

16 with the requirements of those subsections 

17 or the fourth amendment to the Constitu18 tion of the United States, the Court shall 

19 issue an order directing the Government 

20 to, at the Government’s election and to the 

21 extent required by the order of the 

22 Court— 

23 ‘‘(I) correct any deficiency identi24 fied by the order of the Court not 


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1 later than 30 days after the date on 

2 which the Court issues the order; or 

3 ‘‘(II) cease or not begin the ac4 quisition authorized under subsection 

5 (a). 

6 ‘‘(ii) LIMITATION ON USE OF INFOR7 MATION.— 

8 ‘‘(I) IN GENERAL.—Except as 

9 provided in subclause (II), no infor10 mation obtained or evidence derived 

11 from an acquisition for which a defi12 ciency is identified by the Court under 

13 clause (i) concerning any United 

14 States person shall be received in evi15 dence or otherwise disclosed in any 

16 trial, hearing, or other proceeding in 

17 or before any court, grand jury, de18 partment, office, agency, regulatory 

19 body, legislative committee, or other 

20 authority of the United States, a 

21 State, or political subdivision thereof, 

22 and no information concerning any 

23 United States person acquired from 

24 the acquisition shall subsequently be 

25 used or disclosed in any other manner 


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1 by Federal officers or employees with2 out the consent of the United States 

3 person, except with the approval of 

4 the Attorney General if the informa5 tion indicates a threat of death or se6 rious bodily harm to any person. 

7 ‘‘(II) EXCEPTION.—If the Gov8 ernment corrects any deficiency iden9 tified by the order of the Court under 

10 clause (i), the Court may permit the 

11 use or disclosure of information ac12 quired before the date of the correc13 tion under such minimization proce14 dures as the Court shall establish for 

15 purposes of this clause.’’. 

16 SEC. 6. PRIVACY PROTECTIONS FOR INTERNATIONAL COM17 MUNICATIONS OF AMERICANS COLLECTED 

18 UNDER FISA AMENDMENTS ACT. 

19 (a) IN GENERAL.—Title VII of the Foreign Intel20 ligence Surveillance Act of 1978 (50 U.S.C. 1881) is 

21 amended by adding at the end the following: 

22 ‘‘SEC. 709. ADDITIONAL SAFEGUARDS FOR COMMUNICA23 TIONS OF PERSONS IN THE UNITED STATES. 

24 ‘‘(a) LIMITATIONS ON ACQUISITION OF COMMUNICA25 TIONS.— 


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1 ‘‘(1) LIMITATION.—Except as provided in para2 graph (2), no communication shall be acquired 

3 under this title if the Government knows before or 

4 at the time of acquisition that the communication is 

5 to or from a person reasonably believed to be located 

6 in the United States. 

7 ‘‘(2) EXCEPTION.— 

8 ‘‘(A) IN GENERAL.—Notwithstanding para9 graph (1), a communication may be acquired in 

10 accordance with this title if— 

11 ‘‘(i) there is reason to believe that the 

12 communication concerns international ter13 rorist activities directed against the United 

14 States, or activities in preparation there15 for; 

16 ‘‘(ii) there is probable cause to believe 

17 that the target reasonably believed to be 

18 located outside the United States is an 

19 agent of a foreign power and the foreign 

20 power is a group engaged in international 

21 terrorism or activities in preparation there22 for; or 

23 ‘‘(iii) there is reason to believe that 

24 the acquisition is necessary to prevent 

25 death or serious bodily harm. 


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1 ‘‘(B) ACCESS TO COMMUNICATIONS.— 

2 Communications acquired under this paragraph 

3 shall be treated in accordance with subsection 

4 (b). 

5 ‘‘(3) PROCEDURES FOR DETERMINATIONS BE6 FORE OR AT THE TIME OF ACQUISITION.— 

7 ‘‘(A) SUBMISSION.—Not later than 120 

8 days after the date of enactment of the FISA 

9 Amendments Act of 2009, the Attorney Gen10 eral, in consultation with the Director of Na11 tional Intelligence, shall submit to the Foreign 

12 Intelligence Surveillance Court for approval pro13 cedures for determining before or at the time of 

14 acquisition, where reasonably practicable, 

15 whether a communication is to or from a person 

16 reasonably believed to be located in the United 

17 States and whether the exception under para18 graph (2) applies to that communication. 

19 ‘‘(B) REVIEW.—The Foreign Intelligence 

20 Surveillance Court shall approve the procedures 

21 submitted under subparagraph (A) if the proce22 dures are reasonably designed to determine be23 fore or at the time of acquisition, where reason24 ably practicable, whether a communication is to 

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1 cated in the United States and whether the ex2 ception under paragraph (2) applies to that 

3 communication. 

4 ‘‘(C) PROCEDURES DO NOT MEET RE5 QUIREMENTS.—If the Foreign Intelligence Sur6 veillance Court concludes that the procedures 

7 submitted under subparagraph (A) do not meet 

8 the requirements of subparagraph (B), the 

9 Court shall enter an order so stating and pro10 vide a written statement for the record of the 

11 reasons for the determination. The Government 

12 may appeal an order under this subparagraph 

13 to the Foreign Intelligence Surveillance Court 

14 of Review. 

15 ‘‘(D) USE OF PROCEDURES.—If the For16 eign Intelligence Surveillance Court approves 

17 procedures under this paragraph, the Govern18 ment shall use the procedures in any acquisition 

19 of communications under this title. 

20 ‘‘(E) REVISIONS.—The Attorney General, 

21 in consultation with the Director of National 

22 Intelligence, may submit new or amended proce23 dures to the Foreign Intelligence Surveillance 

24 Court for review under this paragraph. 


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1 ‘‘(F) RELIABILITY.—If the Government 

2 obtains new information relating to the reli3 ability of procedures approved under this para4 graph or the availability of more reliable proce5 dures, the Attorney General shall submit to the 

6 Foreign Intelligence Surveillance Court the in7 formation. 

8 ‘‘(b) LIMITATIONS ON ACCESS TO COMMUNICA9 TIONS.— 

10 ‘‘(1) IN GENERAL.—At such time as the Gov11 ernment can reasonably determine that a commu12 nication acquired under this title (including a com13 munication acquired under subsection (a)(2)) is to 

14 or from a person reasonably believed to be located 

15 in the United States, the communication shall be 

16 segregated or specifically designated and no person 

17 shall access the communication, except in accordance 

18 with title I or this section. 

19 ‘‘(2) EXCEPTIONS.—In addition to any author20 ity under title I, including the emergency provision 

21 in section 105(f), a communication described in 

22 paragraph (1) may be accessed and disseminated for 

23 a period of not longer than 7 days if— 

24 ‘‘(A)(i) there is reason to believe that the 

25 communication concerns international terrorist 


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1 activities directed against the United States, or 

2 activities in preparation therefor; 

3 ‘‘(ii) there is probable cause to believe that 

4 the target reasonably believed to be located out5 side the United States is an agent of a foreign 

6 power and the foreign power is a group engaged 

7 in international terrorism or activities in prepa8 ration therefor; or 

9 ‘‘(iii) there is reason to believe that the ac10 cess is necessary to prevent death or serious 

11 bodily harm; 

12 ‘‘(B) the Attorney General notifies the 

13 Foreign Intelligence Surveillance Court imme14 diately of the access; and 

15 ‘‘(C) not later than 7 days after the date 

16 the access is initiated, the Attorney General— 

17 ‘‘(i) makes an application for an order 

18 under title I; or 

19 ‘‘(ii) submits to the Foreign Intel20 ligence Surveillance Court a document 

21 that— 

22 ‘‘(I) certifies that— 

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1 tivities directed against the 

2 United States, or activities in 

3 preparation therefor; 

4 ‘‘(bb) there is probable 

5 cause to believe that the target 

6 reasonably believed to be located 

7 outside the United States is an 

8 agent of a foreign power and the 

9 foreign power is a group engaged 

10 in international terrorism or ac11 tivities in preparation therefor; or 

12 ‘‘(cc) there is reason to be13 lieve that the access is necessary 

14 to prevent death or serious bodily 

15 harm; and 

16 ‘‘(II) identifies the target of the 

17 collection, the party to the commu18 nication who is in the United States if 

19 known, and the extent to which infor20 mation relating to the communication 

21 has been disseminated. 

22 ‘‘(3) DENIAL OF COURT ORDER.—If an applica23 tion for a court order described in paragraph 

24 (2)(C)(i) is made and is not approved, the Attorney 

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1 veillance Court, not later than 7 days after the date 

2 of the denial of the application, the document de3 scribed in paragraph (2)(C)(ii). 

4 ‘‘(4) ADDITIONAL COURT AUTHORITIES.— 

5 ‘‘(A) IN GENERAL.—The Foreign Intel6 ligence Surveillance Court may— 

7 ‘‘(i) limit access to communications 

8 described in paragraph (1) relating to a 

9 particular target if the Court determines 

10 that any certification submitted under 

11 paragraph (2)(C)(ii)(I) with respect to that 

12 target is clearly erroneous; and 

13 ‘‘(ii) require the Attorney General to 

14 provide the factual basis for a certification 

15 submitted under paragraph (2)(C)(ii)(I), if 

16 the Court determines it would aid the 

17 Court in conducting review under this sub18 section. 

19 ‘‘(B) FISC ACCESS.—The Foreign Intel20 ligence Surveillance Court shall have access to 

21 any communications that have been segregated 

22 or specifically designated under paragraph (1) 

23 and any information the use of which has been 

24 limited under paragraph (5). 

25 ‘‘(5) FAILURE TO NOTIFY.— 


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1 ‘‘(A) IN GENERAL.—In the circumstances 

2 described in subparagraph (B), access to a com3 munication shall terminate, and no information 

4 obtained or evidence derived from the access 

5 concerning any United States person shall be 

6 received in evidence or otherwise disclosed in 

7 any trial, hearing, or other proceeding in or be8 fore any court, grand jury, department, office, 

9 agency, regulatory body, legislative committee, 

10 or other authority of the United States, a State, 

11 or political subdivision thereof, and no informa12 tion concerning any United States person ac13 quired from the access shall subsequently be 

14 used or disclosed in any manner by Federal of15 ficers or employees without the consent of the 

16 person, except with the approval of the Attor17 ney General if the information indicates a 

18 threat of death or serious bodily harm to any 

19 person, or if a court order is obtained under 

20 title I. 

21 ‘‘(B) CIRCUMSTANCES.—The cir22 cumstances described in this subparagraph are 

23 circumstances in which— 

24 ‘‘(i) as of the date that is 7 days after 

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1 tion is initiated under paragraph (2), a 

2 court order described in paragraph 

3 (2)(C)(i) has not been sought and the doc4 ument described in paragraph (2)(C)(ii) 

5 has not been submitted; or 

6 ‘‘(ii) as of the date that is 7 days 

7 after an application for a court order de8 scribed in paragraph (2)(C)(i) is denied, 

9 the document described in paragraph 

10 (2)(C)(ii) is not submitted in accordance 

11 with paragraph (3). 

12 ‘‘(6) EVIDENCE OF A CRIME.—Information or 

13 communications subject to this subsection may be 

14 disseminated for law enforcement purposes if it is 

15 evidence that a crime has been, is being, or is about 

16 to be committed, if dissemination is made in accord17 ance with section 106(b). 

18 ‘‘(7) PROCEDURES FOR DETERMINATIONS

19 AFTER ACQUISITION.— 

20 ‘‘(A) IN GENERAL.—Not later than 120 

21 days after the date of enactment of the FISA 

22 Amendments Act of 2009, the Attorney Gen23 eral, in consultation with the Director of Na24 tional Intelligence, shall submit to the Foreign 

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1 cedures for determining, where reasonably prac2 ticable, whether a communication acquired 

3 under this title is to or from a person reason4 ably believed to be in the United States. 

5 ‘‘(B) REVIEW.—The Foreign Intelligence 

6 Surveillance Court shall approve the procedures 

7 submitted under subparagraph (A) if the proce8 dures are reasonably designed to determine, 

9 where reasonably practicable, whether a com10 munication acquired under this title is a com11 munication to or from a person reasonably be12 lieved to be located in the United States. 

13 ‘‘(C) PROCEDURES DO NOT MEET RE14 QUIREMENTS.—If the Foreign Intelligence Sur15 veillance Court concludes that the procedures 

16 submitted under subparagraph (A) do not meet 

17 the requirements of subparagraph (B), the 

18 Court shall enter an order so stating and pro19 vide a written statement for the record of the 

20 reasons for the determination. The Government 

21 may appeal an order under this subparagraph 

22 to the Foreign Intelligence Surveillance Court 

23 of Review. 

24 ‘‘(D) USE OF PROCEDURES.—If the For25 eign Intelligence Surveillance Court approves 


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1 procedures under this paragraph, the Govern2 ment shall use the procedures for any commu3 nication acquired under this title. 

4 ‘‘(E) REVISIONS.—The Attorney General, 

5 in consultation with the Director of National 

6 Intelligence, may submit new or amended proce7 dures to the Foreign Intelligence Surveillance 

8 Court for review under this paragraph. 

9 ‘‘(F) RELIABILITY.—If the Government 

10 obtains new information relating to the reli11 ability of procedures approved under this para12 graph or the availability of more reliable proce13 dures, the Attorney General shall submit to the 

14 Foreign Intelligence Surveillance Court the in15 formation. 

16 ‘‘(c) TITLE I COURT ORDER.—If the Government ob17 tains a court order under title I relating to a target of 

18 an acquisition under this title, the Government may access 

19 and disseminate, under the terms of that court order and 

20 any applicable minimization requirements, any commu21 nications of that target that have been acquired and seg22 regated or specifically designated under subsection (b)(1). 

23 ‘‘(d) INSPECTOR GENERAL AUDIT.— 

24 ‘‘(1) AUDIT.—Not less than once each year, the 

25 Inspector General of the Department of Defense and 


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1 the Inspector General of the Department of Justice 

2 shall complete an audit of the implementation of and 

3 compliance with this section. For purposes of an 

4 audit under this paragraph, the Inspectors General 

5 shall have access to any communications that have 

6 been segregated or specifically designated under sub7 section (b)(1) and any information the use of which 

8 has been limited under subsection (b)(5). An audit 

9 under this paragraph shall include an accounting of 

10 any segregated or specifically designated commu11 nications that have been disseminated. 

12 ‘‘(2) REPORT.—Not later than 30 days after 

13 the completion of each audit under paragraph (1), 

14 the Inspector General of the Department of Defense 

15 and the Inspector General of the Department of 

16 Justice shall jointly submit to the Permanent Select 

17 Committee on Intelligence and the Committee on the 

18 Judiciary of the House of Representatives and the 

19 Select Committee on Intelligence and the Committee 

20 on the Judiciary of the Senate a report containing 

21 the results of the audit. 

22 ‘‘(3) EXPEDITED SECURITY CLEARANCE.—The 

23 Director of National Intelligence shall ensure that 

24 the process for the investigation and adjudication of 

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1 propriate staff of an Inspector General for a security 

2 clearance necessary for the conduct of the audits 

3 under this subsection is conducted as expeditiously 

4 as possible. 

5 ‘‘(e) APPLICABILITY.—Subsections (a) and (b) shall 

6 apply to any communication acquired under this title on 

7 or after the earlier of— 

8 ‘‘(1) the date that the Foreign Intelligence Sur9 veillance Court approves the procedures described in 

10 subsection (a)(3) and the procedures described in 

11 subsection (b)(7); and 

12 ‘‘(2) 1 year after the date of enactment of the 

13 FISA Amendments Act of 2009.’’. 

14 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

15 The table of contents in the first section of the Foreign 

16 Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et 

17 seq.) is amended by inserting after the item relating to 

18 section 708 the following: 

‘‘Sec. 709. Additional safeguards for communications of persons in the United 

States.’’. 

Æ 


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