```

[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 1869 Introduced in Senate (IS)]

103d CONGRESS
  2d Session
                                S. 1869

         To amend the National Security Act of 1947 to improve 
 counterintelligence measures through enhanced security for classified 
                  information, and for other purposes.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

            February 24 (legislative day, February 22), 1994

 Mr. Cohen (for himself and Mr. Boren) introduced the following bill; 
     which was read twice and referred to the Select Committee on 
                              Intelligence

_______________________________________________________________________

                                 A BILL

 
         To amend the National Security Act of 1947 to improve 
 counterintelligence measures through enhanced security for classified 
                  information, and for other purposes.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Counterintelligence Improvements Act 
of 1994''.

SEC. 2. AMENDMENT TO THE NATIONAL SECURITY ACT OF 1947.

    The National Security Act of 1947 (50 U.S.C. 401 et seq.) is 
amended by inserting at the end thereof the following new title:

             ``TITLE VIII--ACCESS TO TOP SECRET INFORMATION

           ``eligibility for access to top secret information

    ``Sec. 801. (a) The President and Vice President, Members of the 
Congress, Justices of the Supreme Court and judges of other courts of 
the United States established pursuant to Article III of the 
Constitution, shall, by virtue of their elected or appointed positions, 
be entitled to access to Top Secret information needed for the 
performance of their governmental functions without regard to the other 
provisions of this title.
    ``(b) Among employees of the United States Government, access to 
Top Secret information shall be limited to employees--
            ``(1) who have been granted access to such information 
        pursuant to this title;
            ``(2) who are citizens of the United States who require 
        routine access to such information for the performance of 
        official governmental functions; and
            ``(3) who have been determined to be trustworthy based upon 
        a background investigation and appropriate reinvestigations and 
        have otherwise satisfied the requirements of section 802, 
        below.
    ``(c) Access to Top Secret information by persons other than those 
identified in subsections (a) and (b) shall be permitted only in 
accordance with the regulations issued by the President pursuant to 
section 802 below.

                       ``implementing regulations

    ``Sec. 802. The President shall, within 180 days of enactment of 
this title, issue regulations to implement this title which shall be 
binding upon all departments, agencies, and offices of the Executive 
branch. These regulations shall, at a minimum provide that--
            ``(a) no employee of the United States Government shall be 
        given access to Top Secret information owned, originated or 
        possessed by United States, after the effective date of this 
        title, by any department, agency, or entity of the United 
        States Government unless such person has been subject to an 
        appropriate background investigation and has--
                    ``(1) provided consent to the investigative agency 
                responsible for conducting the security investigation 
                of such person, during the initial background 
                investigation and for such times as access to such 
                information is maintained, and for 5 years thereafter, 
                permitting access to--
                            ``(A) financial records concerning the 
                        subject pursuant to section 1104 of the Right 
                        to Financial Privacy Act of 1978;
                            ``(B) consumer reports concerning the 
                        subject pursuant to section 1681b of the 
                        Consumer Credit Protection Act; and
                            ``(C) records maintained by commercial 
                        entities within the United States pertaining to 
                        any travel by the subject outside the United 
                        States: Provided, That--
                                    ``(i) no information may be 
                                requested by an authorized 
                                investigative agency pursuant to this 
                                section for any purpose other than 
                                making a security determination;
                                    ``(ii) where the person concerned 
                                no longer has access to Top Secret 
                                information, no information may be 
                                requested by an authorized 
                                investigative agency pursuant to this 
                                section unless such agency has 
                                reasonable grounds to believe, based 
                                upon specific and articulable facts 
                                available to it, that such person may 
                                pose a threat to the continued security 
                                of the information to which he or she 
                                had previously had access; and
                                    ``(iii) any information obtained by 
                                an authorized investigative agency 
                                pursuant to this section shall not be 
                                disseminated to any other department, 
                                agency, or entity for any purpose other 
                                than for making a security 
                                determination, or for foreign 
                                counterintelligence or law enforcement 
                                purposes;
                    ``(2) agreed, during the period of his or her 
                access, to report to the department, agency, or entity 
                granting such access in accordance with applicable 
                regulations, any travel to foreign countries which has 
                not been authorized as part of the subject's official 
                duties;
                    ``(3) agreed to report to the Federal Bureau of 
                Investigation, or to appropriate investigative 
                authorities of the department, agency, or entity 
                concerned, any unauthorized contacts with persons known 
                to be foreign nationals or persons representing foreign 
                nationals, where an effort to acquire classified 
                information is made by the foreign national, or where 
                such contacts appear intended for this purpose. For 
                purposes of this subsection, the term `unauthorized 
                contacts' does not include contacts made within the 
                context of an authorized diplomatic relationship. 
                Failure by the employee to comply with any of the 
                requirements of this subsection shall constitute 
                grounds for denial or termination of access to the Top 
                Secret information concerned.
            ``(b) all employees granted access to Top Secret 
        information pursuant to this subsection shall also be subject 
        to--
                    ``(1) additional background investigations by 
                appropriate governmental authorities during the period 
                of access at no less frequent interval than every 5 
                years, except that any failure to satisfy this 
                requirement that is not solely attributable to the 
                subject of the investigation shall not result in a loss 
                or denial of access; and
                    ``(2) investigation by appropriate governmental 
                authority at any time during the period of access to 
                ascertain whether such persons continue to meet the 
                requirements for access.
            ``(c) access to Top Secret information by categories of 
        persons who do not meet the requirements of subsections (A) and 
        (B) of this section may be permitted only where the President, 
        or officials designated by the President for this purpose, 
        determine that such access is essential to protect or further 
        the national security interests of the United States.
            ``(d) a single office within the Executive branch shall be 
        designated to monitor the implementation and operation of this 
        title within the Executive branch. This office shall submit an 
        annual report to the President and appropriate committees of 
        the Congress, describing the operation of this title and 
        recommending needed improvements. A copy of the regulations 
        implementing this title shall be provided to the Select 
        Committee on Intelligence of the Senate and the Permanent 
        Select Committee on Intelligence of the House of 
        Representatives thirty days prior to their effective date.

                     ``waivers for individual cases

    ``Sec. 803. In extraordinary circumstances, when essential to 
protect or further the national security interests of the United 
States, the President (or officials designated by the President for 
this purpose) may waive the provisions of this title, or the provisions 
of the regulations issued pursuant to section 802, above, in individual 
cases involving persons who are citizens of the United States or are 
persons admitted into the United States for permanent residence: 
Provided, That all such waivers shall be made a matter of record and 
reported to the office designated pursuant to section 802(D), above, 
and shall be available for review by the Select Committee on 
Intelligence of the Senate and the Permanent Select Committee of the 
House of Representatives.

                             ``definitions

    ``Sec. 804. For purposes of this title--
            ``(a) the term `national security' refers to the national 
        defense and foreign relations of the United States;
            ``(b) the phrases `information classified in the interest 
        of national security' or `classified information' means any 
        information originated by or on behalf of the United States 
        Government, the unauthorized disclosure of which would cause 
        damage to the national security, which has been marked and is 
        controlled pursuant to the Executive Order 12356 of April 2, 
        1982, or successor orders, or the Atomic Energy Act of 1954;
            ``(c) the term `Top Secret information' means information 
        classified in the interests of national security, the 
        unauthorized disclosure of which would cause exceptionally 
        grave damage to the national security;
            ``(d) the term `employee' includes any person who receives 
        a salary or compensation of any kind from the United States 
        Government, is a contractor of the United States Government, is 
        an unpaid consultant of the United States Government, or 
        otherwise acts for or on behalf of the United States 
        Government, but does not include the President or Vice 
        President of the United States, Members of the Congress of the 
        United States, Justices of the Supreme Court or judges of other 
        federal courts established pursuant to Article III of the 
        Constitution; and
            ``(e) the term `authorized investigative agency' means an 
        agency authorized by law or regulation to conduct 
        investigations of persons who are proposed for access to Top 
        Secret information to ascertain whether such persons satisfy 
        the criteria for obtaining and retaining access to such 
        information.

                            ``effective date

    ``Sec. 805. This title shall take effect 180 days after the date of 
its enactment.''.

SEC. 3. PROTECTION OF CRYPTOGRAPHIC INFORMATION.

    The National Security Act of 1947 (50 U.S.C. 401 et seq.), as 
amended by section 2, is further amended by inserting at the end the 
following new title:

          ``TITLE IX--PROTECTION OF CRYPTOGRAPHIC INFORMATION

    ``Sec. 901. (a) Requirements for Access to Cryptographic 
Information.--(1) Any employee of a department or agency within the 
Executive branch who is granted access to classified cryptographic 
information or routine, recurring access to any space in which 
classified cryptographic key is produced or processed, or is assigned 
responsibilities as a custodian of classified cryptographic key, shall, 
as a condition of receiving such access, or being assigned such 
responsibilities, and at a minimum:
            ``(A) meet the requirements applicable to persons having 
        access to Top Secret information, as defined in subsection 
        804(c) of this Act, [as added by Section 2 of this Act]; and
            ``(B) be subject to periodic polygraph examinations 
        conducted by appropriate governmental authorities, limited in 
        scope to questions of a counterintelligence nature, during the 
        period of access.
    ``(2) Failure to submit to an examination required under paragraph 
(1) shall be grounds for removal from access to cryptographic 
information or spaces.
    ``(3) No person shall be removed from access to cryptographic 
information or spaces based solely upon the interpretation of the 
results produced by a polygraph instrument, measuring physiological 
resources, unless, after further investigation, the head of the 
department or agency concerned determines the risk to the national 
security in permitting such access to be so potentially grave that 
access must nonetheless be denied.
    ``(b) Definitions.--For purposes of this section--
            ``(1) the term `classified cryptographic information' means 
        any information classified by the United States Government 
        pursuant to law or Executive order concerning the details of 
        (A) the nature, preparation, or use of any code, cipher, or 
        cryptographic system of the United States; or (B) the design, 
        construction, use, maintenance, or repair of any cryptographic 
        equipment: Provided, however, That the term does not include 
        information concerning the use of cryptographic systems or 
        equipment required for personal or office use;
            ``(2) the phrase `custodian of classified cryptographic 
        key' means positions that require access to classified 
        cryptographic key beyond that required to use or operate 
        cryptographic equipment for personal or office use, future 
        editions of classified cryptographic key, or classified 
        cryptographic key used for multiple devices;
            ``(3) the term `classified cryptographic key' means any 
        information (usually a sequence of random binary digits), in 
        any form, classified by the United States Government pursuant 
        to law or Executive order that is used to set up and 
        periodically change the operations performed by any 
        cryptographic equipment;
            ``(4) the term `cryptographic equipment' means any device, 
        apparatus or appliance used, or prepared, or planned for use by 
        the United States for the purpose of authenticating 
        communications or disguising or concealing the contents, 
        significance, or meanings of communications;
            ``(5) the term `employee' includes any person who receives 
        a salary or compensation of any kind from a department or 
        agency of the Executive branch, or is a contractor or unpaid 
        consultant of such department or agency;
            ``(6) the term `head of a department or agency' refers to 
        the highest official who exercises supervisory control over the 
        employee concerned, and does not include any intermediate 
        supervisory officials who may otherwise qualify as heads of 
        agencies within departments; and
            ``(7) the phrase `questions of a counterintelligence 
        nature' means questions specified to the subject in advance of 
        a polygraph examination solely to ascertain whether the subject 
        is engaged in, or planning, espionage against the United States 
        on behalf of a foreign government or knows persons who are so 
        engaged.
    ``Sec. 902. Implementing Regulations.--The President shall, within 
180 days of the date of enactment of this title, promulgate regulations 
to implement the provisions of this title. The President shall provide 
copies of such regulations to the Select Committee on Intelligence of 
the Senate and the Permanent Select Committee on Intelligence of the 
House of Representatives.''.

SEC. 4. AMENDMENT TO RIGHT TO FINANCIAL PRIVACY ACT.

    Section 1104 of the Right to Financial Privacy Act of 1978 (12 
U.S.C. 3404) is amended by adding at the end thereof the following new 
subsection:
    ``(d)(1) Notwithstanding the provisions of subsection (a), a 
customer who is the subject of a personnel security investigation 
conducted by an authorized investigative agency of the U.S. Government 
as a condition of being granted or maintaining access to Top Secret 
information, as defined by section 804(c) of the National Security Act 
of 1947 (as added by section 2 of this Act), may authorize nonrevokable 
disclosure of all financial records maintained by financial 
institutions for the period of the customer's access to such 
information and for up to 5 years after access to such information has 
been terminated, by the investigative agency responsible for the 
conduct of such investigation, for an authorized security purpose.
    ``(2) Such authority shall be contained in a signed and dated 
statement of the customer which identifies the financial records which 
are authorized to be disclosed. Such statement may also authorize the 
disclosure of financial records of accounts opened during the period 
covered by the consent agreement which are not identifiable at the time 
such consent is provided. A copy of such statement shall be provided by 
the investigative agency concerned to the financial institution from 
which disclosure is sought, together with the certification required 
pursuant to section 1103(b) (12 U.S.C. 3403(b)).
    ``(3) The rights of the customer established by subsection (c), 
above, shall pertain to any disclosures made pursuant to this 
subsection.
    ``(4) On an annual basis, the office designated by President 
pursuant to section 802(D) of the National Security Act of 1947 (as 
added by section 2 of this Act), shall fully inform the Permanent 
Select Committee on Intelligence of the House of Representatives and 
the Select Committee on Intelligence of the Senate concerning the 
number of requests for financial records made pursuant to this 
section.''.

SEC. 5. NEW CRIMINAL OFFENSE FOR THE POSSESSION OF ESPIONAGE DEVICES.

    (a) In General.--Chapter 37 of title 18, United States Code, is 
amended by inserting at the end thereof the following new section:

                   ``possession of espionage devices

    ``Sec. 799a. Whoever knowingly maintains possession of any 
electronic, mechanical, or other device or equipment the design and 
capability of which renders it primarily useful for the purpose of 
surreptitiously collecting or communicating information, with the 
intent of utilizing such device or equipment to undertake actions which 
would violate section 793, 794, 794a (as added by section 6 of this 
Act), or 798 of this title, or section 783(b) of title 50, United 
States Code, shall be fined not more than $10,000 or imprisoned not 
more than 5 years, or both.''.
    (b) Amendments to Table of Sections.--The table of sections for 
chapter 37 of title 18, United States Code, is amended by adding at the 
end thereof the following new item:

``799a. Possession of espionage devices.''.

SEC. 6. NEW OFFENSE FOR SALE OR TRANSFER TO FOREIGN GOVERNMENTS 
              DOCUMENTS AND OTHER MATERIALS DESIGNATED AS TOP SECRET.

    (a) In General.--Chapter 37 of title 18, United States Code, is 
amended by inserting after section 794 the following new section:

  ``sale or transfer of documents or materials marked as `top secret'

    ``Sec. 794a. (a)(1) No person shall knowingly sell or otherwise 
transfer for any valuable consideration to any person whom he knows or 
has reason to believe to be an agent or representative of a foreign 
government--
            ``(A) any document, writing, code book, sketch, photograph, 
        map, model, instrument, equipment, electronic storage media, or 
        other material, or portion thereof, knowing that it is marked 
        or otherwise designated in any manner, pursuant to applicable 
        law and Executive order, as `Top Secret', or
            ``(B) any such document, writing, code book, sketch, 
        photograph, map, model, instrument, equipment, electronic 
        storage media, or other material, or portion thereof, which has 
        had such marking or designation removed without authority and 
        the person making the sale or transfer is aware of such 
        removal.
    ``(2) Paragraph (1) shall not be deemed to be violated by a person 
who makes such transfer pursuant to applicable law or executive branch 
authority.
    ``(b) In any prosecution under this section, whether or not the 
information or material in question has been properly marked or 
designated as `TOP SECRET' pursuant to applicable law or Executive 
order shall not be an element of the offense: Provided, however, That 
it shall be a defense to any prosecution under this section that the 
information or document in question has been officially released to the 
public by an authorized representative of the United States prior to 
the sale or transfer in question.
    ``(c) Violation of this section shall be punishable by imprisonment 
for a maximum of 15 years.''.
    (b) Amendments to Table of Sections.--The table of sections for 
chapter 37 of title 18, United States Code, is amended by inserting 
after the item relating to section 794 the following new item:

``794a. Sale or transfer of documents or materials marked as `Top 
                            Secret'.''

SEC. 7. LESSER CRIMINAL OFFENSE FOR THE REMOVAL OF TOP SECRET DOCUMENTS 
              BY GOVERNMENT EMPLOYEES AND CONTRACTORS.

    (a) In General.--Chapter 93 of title 18, United States Code, is 
amended by inserting at the end thereof the following new section:

     ``removal and retention of `top secret' documents or material

    ``Sec. 1924. Whoever, being an officer, employee, contractor or 
consultant, of the United States, and having, by virtue of his office, 
employment, position, or contract, becomes possessed of documents or 
materials classified at the level of `Top Secret' pursuant to 
applicable law or Executive order, knowingly removes such documents or 
materials without authority and retains such documents or materials at 
an unauthorized location shall be fined not more than $1,000, or 
imprisoned for not more than one year, or both.''.
    (b) Amendment to Table of Sections.--The table of sections for 
chapter 93 of title 18, United States Code, is amended by adding at the 
end thereof the following new item:

``1924. Removal of `Top Secret' documents or material.''

SEC. 8. JURISDICTION OF UNITED STATES COURTS TO TRY CASES INVOLVING 
              ESPIONAGE OUTSIDE THE UNITED STATES.

    (a) Chapter 211 of title 18 of the United States Code is amended by 
adding a new section 3239 as follows:
``Sec. 3239. Jurisdiction for espionage and related offenses
    ``The trial for any offense involving a violation of--
            ``(a) section 793, 794, 794a (as added by section 6 of this 
        Act), 798, 798a (as added by section 5 of this Act), or 
        subsection 1030(a)(1) of this title;
            ``(b) section 601 of the National Security Act of 1947 as 
        added by the Intelligence Identities Protection Act of 1982 (50 
        U.S.C. 421); or
            ``(c) subsections 4(b) or 4(c) of the Subversive Activities 
        Control Act of 1950 (U.S.C. 783(b) or 783(c));
begun or committed upon the high seas or elsewhere out of the 
jurisdiction of any particular state or district, may be prosecuted in 
the District of Columbia, or in the Eastern District of Virginia, or in 
any other district authorized by law.''.
    (b) The chapter analysis for chapter 211 of title 18 of the United 
States Code is amended by striking out

``[3239. Repealed.]''
and inserting in lieu thereof:

``3239. Jurisdiction for espionage and related offenses.''

SEC. 9. EXPANSION OF EXISTING STATUTE REGARDING FORFEITURE OF 
              COLLATERAL PROFITS OF CRIME TO ADDITIONAL ESPIONAGE 
              OFFENSES.

    Section 3681 of title 18, United States Code, is amended--
            (1) in subsection (a), by striking out ``section 794 of 
        this title'' and inserting in lieu thereof ``sections 793, 794, 
        794a (as added by section 6 of this Act), 798, and 799a (as 
        added by section 5 of this Act) of this title and section 783 
        of title 50, United States Code''; and
            (2) by adding at the end thereof the following new 
        subsection:
    ``(e) For purposes of this section, convictions pursuant to 
military courts-martial for offenses comparable to violations of 
sections 793, 794, 794a (as added by section 6 of this Act), 798, and 
799a (as added by section 5 of this Act) of this title, or a violation 
of section 783 of title 50, or convictions by foreign courts for 
offenses which, if perpetrated within the United States, would 
constitute offenses under sections 793, 794, 794a (as added by section 
6 of this Act), 798, and 799a (as added by section 5 of this Act) of 
this title, or a violation of section 783 of title 50 shall be 
considered as convictions for which actions may be ordered pursuant to 
this section.''.

SEC. 10. DENIAL OF ANNUITIES OR RETIRED PAY TO PERSONS CONVICTED OF 
              ESPIONAGE IN FOREIGN COURTS INVOLVING UNITED STATES 
              INFORMATION.

    Section 8312 of title 5, United States Code, is amended by adding 
at the end thereof the following new subsection:
    ``(d) For purposes of subsections (b)(1) and (c)(1), an offense 
within the meaning of such subsections is established if the Attorney 
General certifies to the agency employing or formerly employing the 
person concerned--
            ``(i) that an individual subject to this chapter has been 
        convicted by an impartial court of appropriate jurisdiction 
        within a foreign country in circumstances in which the conduct 
        violates the provisions of law enumerated in subsections (b)(1) 
        and (c)(1), or would violate such provisions, had such conduct 
        taken place within the United States, and that such conviction 
        is not being appealed or that final action has been taken on 
        such appeal;
            ``(2) that such conviction was obtained in accordance with 
        procedures that provided the defendant due process rights 
        comparable to such rights provided by the United States 
        Constitution, and such conviction was based upon evidence which 
        would have been admissible in the courts of the United States; 
        and
            ``(3) that such conviction occurred after the date of 
        enactment of this subsection:
Provided, That any certification made pursuant to this paragraph shall 
be subject to review by the United States Court of Claims based upon 
the application of the individual concerned, or his or her attorney, 
alleging that any of the conditions set forth in subsections (1), (2), 
(3), herein, as certified by the Attorney General, have not been 
satisfied in his or her particular circumstances. Should the court 
determine that any of these conditions has not been satisfied in such 
case, the court shall order any annuity or retirement benefit to which 
the person concerned is entitled to be restored and shall order that 
any payments which may have been previously denied or withheld to be 
paid by the department or agency concerned.

SEC. 11. AUTHORIZING THE FBI TO OBTAIN CONSUMER REPORTS ON PERSONS 
              BELIEVED TO BE AGENTS OF FOREIGN POWERS.

    Section 608 of the Consumer Credit Protection Act (15 U.S.C. 1681f) 
is amended--
            (1) by inserting ``(a)'' before ``Notwithstanding''; and
            (2) by inserting at the end thereof the following new 
        subsections:
    ``(b) Notwithstanding the provisions of section 604, a consumer 
reporting agency shall, upon request, furnish a consumer report to the 
Federal Bureau of Investigation, if the Director of the Federal Bureau 
of Investigation, or the Director's designee, certifies in writing to 
the consumer reporting agency that such records are sought in 
connection with an authorized foreign counterintelligence investigation 
and that there are specific and articulable facts giving reason to 
believe that the person to whom the requested consumer report relates 
is an agent of a foreign power, as defined in section 101 of the 
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).
    ``(c) Notwithstanding the provisions of section 604, a consumer 
reporting agency shall furnish identifying information respecting any 
consumer, limited to name, address, former addresses, places of 
employment, or former places of employment, to a representative of the 
Federal Bureau of Investigation when presented with a written request 
signed signed by the Director of the Federal Bureau of Investigation, 
or the Director's designee, stating that the information is necessary 
to the conduct of an authorized foreign counterintelligence 
investigation.
    ``(d) No consumer reporting agency, or officer, employee, or agent 
of such institution shall disclose to any person that the Federal 
Bureau of Investigation has sought or obtained a consumer report or 
identifying information respecting any consumer under this section.
    ``(e) On an annual basis the Director of the Federal Bureau of 
Investigation shall fully inform the Permanent Select Committee on 
Intelligence of the House of Representatives and the Select Committee 
on Intelligence of the Senate concerning all requests made under 
subsections (b) and (c).''.

SEC. 12. TO PROVIDE FOR REWARDS FOR INFORMATION CONCERNING ESPIONAGE.

    (a) In General.--Chapter 204 of title 18, United States Code, is 
amended--
            (1) by inserting at the end of the chapter heading ``AND 
        ESPIONAGE'';
            (2) in section 3071, by inserting ``(a)'' immediately 
        before ``With respect to'';
            (3) in section 3071, adding at the end thereof the 
        following new subsection:
    ``(b) With respect to acts of espionage involving or directed at 
United States information classified in the interest of national 
security, the Attorney General may reward any individual who furnishes 
information--
            ``(1) leading to the arrest or conviction, in any country, 
        of any individual or individuals for commission of an act of 
        espionage against the United States;
            ``(2) leading to the arrest or conviction, in any country, 
        of any individual or individuals for conspiring or attempting 
        to commit an act of espionage against the United States; or
            ``(3) leading to the prevention or frustration of an act of 
        espionage against the United States.''.
    (b) Amount of Rewards.--Section 3072 of title 18, United States 
Code, is amended by striking out ``$500,000'' and inserting in lieu 
thereof ``$1,000,000''.
    (c) Definitions.--Section 3077 of title 18, United States Code, is 
amended by inserting at the end thereof the following new paragraphs:
            ``(8) `act of espionage' means an activity that is a 
        violation of sections 794, 794a (as added by section 6 of this 
        Act), 798, or 799a (as added by section 5 of this Act) of this 
        title or section 783 of title 50, United States Code.
            ``(9) `United States information classified in the 
        interests of national security' means information originated, 
        owned, or possessed by the United States Government concerning 
        the national defense and foreign relations of the United States 
        that has been determined pursuant to law or Executive order to 
        require protection against unauthorized disclosure and that has 
        been so designated.''.

SEC. 13. TO PROVIDE A COURT ORDER PROCESS FOR PHYSICAL SEARCHES 
              UNDERTAKEN FOR FOREIGN INTELLIGENCE PURPOSES.

    The Foreign Intelligence Surveillance Act of 1978 is amended by 
inserting at the end thereof the following new title:

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

 ``authorization of physical searches for foreign intelligence purposes

    ``Sec. 401(a). Applications for a court order under this title are 
authorized if the President has, in writing, empowered the Attorney 
General to approve applications to the Foreign Intelligence 
Surveillance Court, and a judge of that court to whom application is 
made may, notwithstanding any other law, grant an order, in conformity 
with section 403, approving a physical search in the United States, for 
the purpose of collecting foreign intelligence information of--
            ``(1) the property, information or material of a foreign 
        power as defined in section 101(a)(1), (2), and (3) of this 
        Act, or
            ``(2) the premises, property, information or material of an 
        agent of a foreign power or a foreign power as defined in 
        section 101(a)(4), (5), and (6) of this Act.
    ``(b) The Foreign Intelligence Surveillance Court shall have 
jurisdiction to hear applications for and grant orders approving a 
physical search for the purpose of obtaining foreign intelligence 
information anywhere within the United States under the procedures set 
forth in this title, except that no judge shall hear the same 
application which has been denied previously by another judge. If any 
judge denies an application for an order authorizing a physical search 
under this title, such judge shall provide immediately for the record a 
written statement of each reason for his decision and, on motion of the 
United States, the record shall be transmitted, under seal, to the 
Court of Review.
    ``(c) The Court of Review shall have jurisdiction to review the 
denial of any application made under this title. If such court 
determines that the application was properly denied, the Court shall 
immediately provide for the record a written statement of each reason 
for its decision and, on petition of the United States for a writ of 
certiorari, the record shall be transmitted under seal to the Supreme 
Court, which shall have jurisdiction to review such decision.
    ``(d) Judicial proceedings under this title shall be concluded as 
expeditiously as possible. The record of proceedings under this title, 
including applications made and orders granted, shall be maintained 
under security measures established by the Chief Justice of the United 
States in consultation with the Attorney General and the Director of 
Central Intelligence.

                       ``application for an order

    ``Sec. 402(a). Each application for an order approving a physical 
search under this title shall be made by a Federal officer in writing 
upon oath or affirmation to a judge of the Foreign Intelligence 
Surveillance Court. Each application shall require the approval of the 
Attorney General based upon the Attorney General's finding that it 
satisfied the criteria and requirements for such application as set 
forth in this title. It shall include--
            ``(1) the identity, if known, or a description of the 
        target of the search;
            ``(2) the authority conferred on the Attorney General by 
        the President of the United States and the approval of the 
        Attorney General to make the application;
            ``(3) the identity of the Federal officer making the 
        application and a detailed description of the premises or 
        property to be searched and of the information, material, or 
        property to be seized, reproduced, or altered;
            ``(4) a statement of the facts and circumstances relied 
        upon by the applicant to justify the applicant's belief that--
                    ``(A) the target of the physical search is a 
                foreign power or an agent of a foreign power;
                    ``(B) the premises or property to be searched 
                contains foreign intelligence information;
                    ``(C) the premises or property to be searched is 
                owned, used, possessed by, or is in transit to or from 
                a foreign power or an agent of a foreign power;
            ``(5) a statement of the proposed minimization procedures;
            ``(6) a statement of the manner in which the physical 
        search is to be conducted;
            ``(7) a statement of the facts concerning all previous 
        applications that have been made to any judge under this title 
        involving any of the persons, premises, or property specified 
        in the application, and the action taken on each previous 
        applications;
            ``(8) a statement of the facts concerning any search 
        described in section 406(b), below, which involves any of the 
        persons, premises, or property specified in the application; 
        and
            ``(9) a statement that the purpose of the physical search 
        is to obtain foreign intelligence information.
    ``(b) The judge may require the applicant to furnish such other 
information as may be necessary to make the determinations required by 
section 403.

                         ``issuance of an order

    ``Sec. 403. (a) Upon an application made pursuant to section 402, 
the judge shall enter an ex parte order as requested or as modified 
approving the physical search if the judge finds that--
            ``(1) the President has authorized the Attorney General to 
        approve applications for physical searches for foreign 
        intelligence purposes;
            ``(2) the application has been made by a Federal officer 
        and approved by the Attorney General;
            ``(3) on the basis of the facts submitted by the applicant 
        there is probable cause to believe that--
                    ``(A) the target of the physical search is a 
                foreign power or an agent of a foreign power: Provided, 
                That no United States person may be considered an agent 
                of a foreign power solely upon the basis of activities 
                protected by the first amendment to the Constitution of 
                the United States;
                    ``(B) the premises or property to be searched are 
                owned, used, possessed by, or is in transit to or from 
                an agent of a foreign power or a foreign power; and
                    ``(C) physical search of such premises or property 
                can reasonably be expected to yield foreign 
                intelligence information which cannot reasonably be 
                obtained by normal investigative means; and
            ``(4) the proposed minimization procedures meet the 
        definition of minimization contained in this title; and
            ``(5) the application which has been filed contains all 
        statements required by section 402.
    ``(b) An order approving a physical search under this section 
shall--
            ``(1) specify--
                    ``(A) the Federal officer or officers authorized to 
                conduct the physical search and the identity, if known, 
                or a description of the target of the physical search;
                    ``(B) the premises or property to be searched and 
                the information, material, or property to be seized, 
                altered, or reproduced;
                    ``(C) the type of foreign intelligence information 
                sought to be acquired; and
                    ``(D) a statement of the manner in which the 
                physical search is to be conducted and, whenever more 
                than one physical search is authorized under the order, 
                the authorized scope of each search and what 
                minimization procedures shall apply to the information 
                acquired by each search;
            ``(2) direct--
                    ``(A) that the minimization procedures be followed;
                    ``(B) that, upon the request of the applicant, a 
                specified landlord, custodian, or other specified 
                person furnish the applicant forthwith all information, 
                facilities, or assistance necessary to accomplish the 
                physical search in such a manner as will protect its 
                secrecy and produce a minimum of interference with the 
                activities of the landlord, custodian, or other person; 
                and that such landlord, custodian or other person 
                maintain under security procedures approved by the 
                Attorney General and the Director of Central 
                Intelligence any records concerning the search or the 
                aid furnished that such person wishes to retain;
                    ``(C) that the physical search be undertaken within 
                30 days of the date of the order, or, if the physical 
                search is of the property, information or material of a 
                foreign power as defined in section 101(a)(1), (2), or 
                (3) of this Act, that such search be undertaken within 
                one year of the order; and
                    ``(D) that the federal officer conducting the 
                physical search promptly report to the court the 
                circumstances and results of the physical search.
    ``(c) At any time after a physical search has been carried out, the 
judge to whom the return has been made may assess compliance with the 
minimization procedures by reviewing the circumstances under which 
information concerning United States persons was acquired, retained, or 
disseminated.
    ``(d) Application made and orders granted under this title shall be 
retained for a period of at least ten years from the date of the 
application.
    ``(e) Not more than 60 days after a physical search of the 
residence of a United States person authorized by this title, or such a 
search in the circumstances described in section 406(b), has been 
conducted, the Attorney General shall provide the United States person 
with an inventory which shall include--
            ``(1) existence or not of a court order authorizing the 
        physical search and the date of the order;
            ``(2) the date of the physical search and an identification 
        of the premises or property searched; and
            ``(3) a list of any information, material, or property 
        seized, altered, or reproduced.
    ``(f) On an ex parte showing of good cause by the Attorney General 
to a judge of the Foreign Intelligence Surveillance Court the provision 
of the inventory required by subsection (e) may be postponed for a 
period not to exceed 90 days. At the end of such period the provision 
of the inventory may, upon a similar showing, be postponed 
indefinitely. The denial of a request for such postponements may be 
reviewed as provided in section 401.

                          ``use of information

    ``Sec. 404. (a) Information acquired from a physical search 
conducted pursuant to this title concerning any United States person 
may be used and disclosed by Federal officers and employees without the 
consent of the United States person only in accordance with the 
minimization procedures required by this title. No information acquired 
from a physical search pursuant to this title may be used or disclosed 
by Federal officers or employees except for lawful purposes.
    ``(b) No information acquired pursuant to this title shall be 
disclosed for law enforcement purposes unless such disclosure is 
accompanied by a statement that such information, or any information 
derived therefrom, may only be used in a criminal proceeding with the 
advance authorization of the Attorney General.
    ``(c) Whenever the United States intends to enter into evidence or 
otherwise use or disclose in any trial, hearing, or other proceeding in 
or before any court, department, officer, agency, regulatory body, or 
other authority of the United States, against an aggrieved person, any 
information obtained or derived from a physical search of the premises 
or property of that aggrieved person pursuant to the authority of this 
title, the United States shall, prior to the trial, hearing, or the 
other proceeding or at a reasonable time prior to an effort to so 
disclose or so use that information or submit it in evidence, notify 
the aggrieved person and the court or other authority in which the 
information is to be disclosed or used that the United States intends 
to so disclose or so use such information.
    ``(d) Whenever any State or political subdivision thereof intends 
to enter into evidence or otherwise use of disclose in any trial, 
hearing, or other proceeding in or before any court, department, 
officer, agency, regulatory body, or other authority of a State or a 
political subdivision thereof against an aggrieved person any 
information obtained or derived from a physical search of the premises 
or property of that aggrieved person pursuant to the authority of this 
title, the State or political subdivision thereof shall notify the 
aggrieved person, the court or other authority in which the information 
is to be disclosed or used, and the Attorney General that the State or 
political subdivision thereof intends to so disclose or so use such 
information.
    ``(e) Any person against whom evidence obtained or derived from a 
physical search to which he is an aggrieved person is to be, or has 
been, introduced or otherwise used or disclosed in any trial, hearing, 
or other proceeding in or before any court, department, officer, 
agency, regulatory body, or other authority of the United States, a 
State, or a political subdivision thereof, may move to suppress the 
evidence obtained or derived from such search on the grounds that--
            ``(1) the information was unlawfully acquired; or
            ``(2) the physical search was not made in conformity with 
        an order of authorization or approval.
Such a motion shall be made before the trial, hearing, or other 
proceeding unless there was no opportunity to make such a motion or the 
person was not aware of the grounds of the motion.
    ``(f) Whenever a court of other authority is notified pursuant to 
subsection (c) or (d), or whenever a motion is made pursuant to 
subsection (e), or whenever any motion or request is made by an 
aggrieved person pursuant to any other statute or rule of the United 
States or any State before any court or other authority of the United 
States or any State to discover or obtain applications or orders or 
other materials relating to a physical search authorized by this title 
or to discover, obtain, or suppress evidence or information obtained or 
derived from a physical search authorized by this title, the United 
States district court or, where the motion is made before another 
authority, the United States district court in the same district as the 
authority shall, notwithstanding any other law, if the Attorney General 
files an affidavit under oath that disclosure or an adversary hearing 
would harm the national security of the United States, review in camera 
and ex parte the application, order, and such other materials relating 
to the physical search as may be necessary to determine whether the 
physical search of the aggrieved person was lawfully authorized and 
conducted. In making this determination, the court may disclose to the 
aggrieved person, under appropriate security procedures and protective 
orders, portions of the application, order, or other materials relating 
to the physical search only where such disclosure is necessary to make 
an accurate determination of the legality of the physical search.
    ``(g) If the United States district court pursuant to subsection 
(f) determines that the physical search was not lawfully authorized or 
conducted, it shall, in accordance with the requirements of law, 
suppress the evidence which was unlawfully obtained or derived from the 
physical search of the aggrieved person or otherwise grant the motion 
of the aggrieved person. If the court determines that the physical 
search was lawfully authorized or conducted, it shall deny the motion 
of the aggrieved person except to the extent that due process requires 
discovery or disclosure.
    ``(h) Orders granting motions or requests under subsection (g), 
decisions under this section that a physical search was not lawfully 
authorized or conducted, and orders of the United States district court 
requiring review or granting disclosure of applications, orders or 
other materials relating to the physical search shall be final orders 
and binding upon all courts of the United States and the several States 
except a United States court of appeals and the Supreme Court.
    ``(i) The provisions of this section regarding the use or 
disclosure of information obtained or derived from a physical search 
shall apply to information obtained or derived from a search conducted 
without a court order to obtain foreign intelligence information which 
is not a physical search as defined in this title solely because the 
existence of exigent circumstances would not require a warrant for law 
enforcement purposes.

                              ``oversight

    ``Sec. 405. (a) On a semiannual basis the Attorney General shall 
fully inform the House Permanent Select Committee on Intelligence and 
the Senate Select Committee on Intelligence concerning all physical 
searches conducted pursuant to this title, and all other searches, 
except those reported under section 108 of this Act, conducted in the 
United States for foreign intelligence purposes. On an annual basis the 
Attorney General shall also provide to those committees a report 
setting forth with respect to the preceding calendar year--
            ``(1) the total number of applications made for orders 
        approving physical searches under this title; and
            ``(2) the total number of such orders either granted, 
        modified, or denied.
    ``(b) Whenever a search is conducted without a court order to 
obtain foreign intelligence information which is not a physical search 
as defined in this title solely because the existence of exigent 
circumstances would not require a warrant for law enforcement purposes, 
a full report of such search, including a description of the exigent 
circumstances, shall be maintained by the Attorney General. Each such 
report shall be transmitted to the Foreign Intelligence Surveillance 
Court promptly after the search is conducted.

                 ``authority for intelligence searches

    ``Sec. 406. (a) The procedures contained in this title shall be the 
exclusive means by which a physical search, as defined in this title, 
may be conducted in the United States for foreign intelligence 
purposes, and an order issued under this title authorizing a physical 
search shall constitute a search warrant authorized by law for purposes 
of any other law.
    ``(b) Searches conducted in the United States to collect foreign 
intelligence information, other than physical searches as defined in 
this title and electronic surveillance as defined in this Act, and 
physical searches conducted in the United States without a court order 
to collect foreign intelligence information may be conducted only 
pursuant to regulations issued by the Attorney General. Such 
regulations, and any changes thereto, shall be provided to the Select 
Committee on Intelligence of the Senate and the Permanent Select 
Committee on Intelligence of the House of Representatives at least 14 
days prior to the taking effect. Any regulations issued by the Attorney 
General regarding such searches which were in effect as of June 1, 
1990, shall be deemed to be regulations required by this subsection.

                              ``penalties

    ``Sec. 407. (a) Offense.--A person is guilty of an offense if he 
intentionally--
            ``(1) under color of law for the purpose of obtaining 
        foreign intelligence information, engages in physical search 
        within the United States except as authorized by statute; or
            ``(2) discloses or uses information obtained under color of 
        law by physical search within the United States, knowing or 
        having reason to know that the information was obtained through 
        physical search not authorized by statute, for the purpose of 
        obtaining intelligence information.
    ``(b) Defense.--It is a defense to a prosecution under subsection 
(a) that the defendant was a law enforcement or investigative officer 
engaged in the course of his official duties and the physical search 
was authorized by and conducted pursuant to a search warrant or court 
order of a court of competent jurisdiction.
    ``(c) Penalty.--An offense described in this section is punishable 
by a fine of not more than $10,000 or imprisonment for not more than 
five years, or both.
    ``(d) Jurisdiction.--There is Federal jurisdiction over an offense 
under this section if the person committing the offense was an officer 
or employee of the United States at the time the offense was committed.

                           ``civil liability

    ``Sec. 408. Civil Action.--An aggrieved person, other than a 
foreign power or an agent of a foreign power, as defined in section 101 
(a) or (b)(1)(A), respectively, of this Act, whose premises, property, 
information, or material has been subjected to a physical search within 
the United States or about whom information obtained by such a physical 
search has been disclosed or used in violation of section 407 shall 
have a cause of action against any person who committed such violation 
and shall be entitled to recover--
            ``(a) actual damages;
            ``(b) punitive damages; and
            ``(c) reasonable attorney's fees and other investigative 
        and litigation costs reasonably incurred.

                             ``definitions

    ``Sec. 409. As used in this title:
            ``(a) The terms `foreign power,' `agent of a foreign 
        power,' `international terrorism,' `sabotage,' `foreign 
        intelligence information,' `Attorney General,' `United States 
        person,' `United States',' `person,' and `State' shall have the 
        same meaning as in Section 101 of this Act.
            ``(b) `Physical search' means any physical intrusion into 
        premises or property (including examination of the interior of 
        property by technical means) or any seizure, reproduction 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 `electronic surveillance' as 
        defined in subsection 101(f) of this Act.
            ``(c) `Minimization procedures' with respect to physical 
        search, means--
                    ``(1) specific procedures, which shall be adopted 
                by the Attorney General, that are reasonably designed 
                in light of the purposes and technique of the 
                particular physical search, to minimize the acquisition 
                and retention, and prohibit the dissemination, of non-
                publicly available information concerning unconsenting 
                United States persons consistent with the need of the 
                United States persons consistent with the need of the 
                United States to obtain, produce, and disseminate 
                foreign intelligence information;
                    ``(2) procedures that require that non-publicly 
                available information, which is not foreign 
                intelligence information, as defined in subsection 
                101(e)(1) of this Act, 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 such 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.
            ``(d) `Aggrieved person' means a person whose premises, 
        property, information, or material is the target of physical 
        search or any other person whose premises, property, 
        information, or material was subject to physical search.
            ``(e) `Foreign Intelligence Surveillance Court' means the 
        court established by section 103(a) of this Act.
            ``(f) `Court of Review' means the court established by 
        section 103(b) of this Act.

                            ``effective date

    ``Sec. 410. The provisions of this title shall become effective 90 
days after the date of enactment of this title, except that any 
physical search approved by the Attorney General to gather foreign 
intelligence information shall not be deemed unlawful for failure to 
follow the procedures of this title, if that search is conducted within 
180 days following the date of enactment of this title pursuant to 
regulations issued by the Attorney General, which are in the possession 
of the Select Committee on Intelligence of the Senate and the Permanent 
Select Committee on Intelligence of the House of Representatives prior 
to the date of enactment.''.

                                 <all>

S 1869 IS1S----2
S 1869 IS1S----3
S 1869 IS1S----4
```