II

★(Star Print)

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.

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

2 1947.

3 The National Security Act of 1947 (50 U.S.C. 401

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

5 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
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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 ‘‘(a) no employee of the United States Govern14 ment shall be given access to Top Secret information

15 owned, originated or possessed by 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 ‘‘(1) 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—
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1 ‘‘(A) financial records concerning the

2 subject pursuant to section 1104 of the

3 Right to Financial Privacy Act of 1978;

4 ‘‘(B) consumer reports concerning the

5 subject pursuant to section 1681b of the

6 Consumer Credit Protection Act; and

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

10 the United States: Provided, That—

11 ‘‘(i) no information may be re12 quested by an authorized investigative

13 agency pursuant to this section for

14 any purpose other than making a se15 curity determination;

16 ‘‘(ii) where the person concerned

17 no longer has access to Top Secret in18 formation, no information may be re19 quested by an authorized investigative

20 agency pursuant to this section unless

21 such agency has reasonable grounds

22 to believe, based upon specific and

23 articulable facts available to it, that

24 such person may pose a threat to the

25 continued security of the information
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1 to which he or she had previously had

2 access; and

3 ‘‘(iii) any information obtained

4 by an authorized investigative agency

5 pursuant to this section shall not be

6 disseminated to any other department,

7 agency, or entity for any purpose

8 other than for making a security de9 termination, or for foreign counter10 intelligence or law enforcement pur11 poses;

12 ‘‘(2) agreed, during the period of his or

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

14 or entity granting such access in accordance

15 with applicable regulations, any travel to for16 eign countries which has not been authorized as

17 part of the subject’s official duties;

18 ‘‘(3) agreed to report to the Federal Bu19 reau of Investigation, or to appropriate inves20 tigative authorities of the department, agency,

21 or entity concerned, any unauthorized contacts

22 with persons known to be foreign nationals or

23 persons representing foreign nationals, where

24 an effort to acquire classified information is

25 made by the foreign national, or where such
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1 contacts appear intended for this purpose. For

2 purposes of this subsection, the term ‘unauthor3 ized contacts’ does not include contacts made

4 within the context of an authorized diplomatic

5 relationship. Failure by the employee to comply

6 with any of the requirements of this subsection

7 shall constitute grounds for denial or termi8 nation of access to the Top Secret information

9 concerned.

10 ‘‘(b) all employees granted access to Top Secret

11 information pursuant to this subsection shall also be

12 subject to—

13 ‘‘(1) additional background investigations

14 by appropriate governmental authorities during

15 the period of access at no less frequent interval

16 than every 5 years, except that any failure to

17 satisfy this requirement that is not solely attrib18 utable to the subject of the investigation shall

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

20 ‘‘(2) investigation by appropriate govern21 mental authority at any time during the period

22 of access to ascertain whether such persons

23 continue to meet the requirements for access.

24 ‘‘(c) access to Top Secret information by cat25 egories of persons who do not meet the requirements
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1 of subsections (A) and (B) of this section may be

2 permitted only where the President, or officials des3 ignated by the President for this purpose, determine

4 that such access is essential to protect or further the

5 national security interests of the United States.

6 ‘‘(d) a single office within the Executive branch

7 shall be designated to monitor the implementation

8 and operation of this title within the Executive

9 branch. This office shall submit an annual report to

10 the President and appropriate committees of the

11 Congress, describing the operation of this title and

12 recommending needed improvements. A copy of the

13 regulations implementing this title shall be provided

14 to the Select Committee on Intelligence of the Sen15 ate and the Permanent Select Committee on Intel16 ligence of the House of Representatives thirty days

17 prior to their effective date.

18 ‘‘WAIVERS FOR INDIVIDUAL CASES

19 ‘‘SEC. 803. In extraordinary circumstances, when es20 sential to protect or further the national security interests

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

22 by the President for this purpose) may waive the provi23 sions of this title, or the provisions of the regulations is24 sued pursuant to section 802, above, in individual cases

25 involving persons who are citizens of the United States

26 or are persons admitted into the United States for perma-
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1 nent residence: Provided, That all such waivers shall be

2 made a matter of record and reported to the office des3 ignated pursuant to section 802(D), above, and shall be

4 available for review by the Select Committee on Intel5 ligence of the Senate and the Permanent Select Committee

6 of the House of Representatives.

7 ‘‘DEFINITIONS

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

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

10 national defense and foreign relations of the United

11 States;

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

13 interest of national security’ or ‘classified informa14 tion’ means any information originated by or on be15 half of the United States Government, the unauthor16 ized disclosure of which would cause damage to the

17 national security, which has been marked and is con18 trolled pursuant to the Executive Order 12356 of

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

20 Energy Act of 1954;

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

22 information classified in the interests of national se23 curity, the unauthorized disclosure of which would

24 cause exceptionally grave damage to the national se25 curity;
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1 ‘‘(d) the term ‘employee’ includes any person

2 who receives a salary or compensation of any kind

3 from the United States Government, is a contractor

4 of the United States Government, is an unpaid con5 sultant of the United States Government, or other6 wise acts for or on behalf of the United States Gov7 ernment, but does not include the President or Vice

8 President of the United States, Members of the Con9 gress of the United States, Justices of the Supreme

10 Court or judges of other federal courts established

11 pursuant to Article III of the Constitution; and

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

13 means an agency authorized by law or regulation to

14 conduct investigations of persons who are proposed

15 for access to Top Secret information to ascertain

16 whether such persons satisfy the criteria for obtain17 ing and retaining access to such information.

18 ‘‘EFFECTIVE DATE

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

20 the date of its enactment.’’.

21 SEC. 3. PROTECTION OF CRYPTOGRAPHIC INFORMATION.

22 The National Security Act of 1947 (50 U.S.C. 401

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

24 inserting at the end the following new title:
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1 ‘‘TITLE IX—PROTECTION OF CRYPTOGRAPHIC

2 INFORMATION

3 ‘‘SEC. 901. (a) REQUIREMENTS FOR ACCESS TO

4 CRYPTOGRAPHIC INFORMATION.—(1) Any employee of a

5 department or agency within the Executive branch who

6 is granted access to classified cryptographic information

7 or routine, recurring access to any space in which classi8 fied cryptographic key is produced or processed, or is as9 signed responsibilities as a custodian of classified cryp10 tographic key, shall, as a condition of receiving such ac11 cess, or being assigned such responsibilities, and at a mini12 mum:

13 ‘‘(A) meet the requirements applicable to per14 sons having access to Top Secret information, as de15 fined in subsection 804(c) of this Act, [as added by

16 Section 2 of this Act]; and

17 ‘‘(B) be subject to periodic polygraph examina18 tions conducted by appropriate governmental au19 thorities, limited in scope to questions of a counter20 intelligence nature, during the period of access.

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

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

23 access to cryptographic information or spaces.

24 ‘‘(3) No person shall be removed from access to cryp25 tographic information or spaces based solely upon the in-
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1 terpretation of the results produced by a polygraph instru2 ment, measuring physiological resources, unless, after fur3 ther investigation, the head of the department or agency

4 concerned determines the risk to the national security in

5 permitting such access to be so potentially grave that ac6 cess must nonetheless be denied.

7 ‘‘(b) DEFINITIONS.—For purposes of this section—

8 ‘‘(1) the term ‘classified cryptographic informa9 tion’ means any information classified by the United

10 States Government pursuant to law or Executive

11 order concerning the details of (A) the nature, prep12 aration, or use of any code, cipher, or cryptographic

13 system of the United States; or (B) the design, con14 struction, use, maintenance, or repair of any cryp15 tographic equipment: Provided, however, That the

16 term does not include information concerning the

17 use of cryptographic systems or equipment required

18 for personal or office use;

19 ‘‘(2) the phrase ‘custodian of classified cryp20 tographic key’ means positions that require access to

21 classified cryptographic key beyond that required to

22 use or operate cryptographic equipment for personal

23 or office use, future editions of classified cryp24 tographic key, or classified cryptographic key used

25 for multiple devices;
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1 ‘‘(3) the term ‘classified cryptographic key’

2 means any information (usually a sequence of ran3 dom binary digits), in any form, classified by the

4 United States Government pursuant to law or Exec5 utive order that is used to set up and periodically

6 change the operations performed by any cryp7 tographic equipment;

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

9 any device, apparatus or appliance used, or pre10 pared, or planned for use by the United States for

11 the purpose of authenticating communications or

12 disguising or concealing the contents, significance,

13 or meanings of communications;

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

15 who receives a salary or compensation of any kind

16 from a department or agency of the Executive

17 branch, or is a contractor or unpaid consultant of

18 such department or agency;

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

20 refers to the highest official who exercises super21 visory control over the employee concerned, and does

22 not include any intermediate supervisory officials

23 who may otherwise qualify as heads of agencies

24 within departments; and
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1 ‘‘(7) the phrase ‘questions of a counterintel2 ligence nature’ means questions specified to the sub3 ject in advance of a polygraph examination solely to

4 ascertain whether the subject is engaged in, or plan5 ning, espionage against the United States on behalf

6 of a foreign government or knows persons who are

7 so engaged.

8 ‘‘SEC. 902. IMPLEMENTING REGULATIONS.—The

9 President shall, within 180 days of the date of enactment

10 of this title, promulgate regulations to implement the pro11 visions of this title. The President shall provide copies of

12 such regulations to the Select Committee on Intelligence

13 of the Senate and the Permanent Select Committee on In14 telligence of the House of Representatives.’’.

15 SEC. 4. AMENDMENT TO RIGHT TO FINANCIAL PRIVACY

16 ACT.

17 Section 1104 of the Right to Financial Privacy Act

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

19 end thereof the following new subsection:

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

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

22 investigation conducted by an authorized investigative

23 agency of the U.S. Government as a condition of being

24 granted or maintaining access to Top Secret information,

25 as defined by section 804(c) of the National Security Act
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1 of 1947 (as added by section 2 of this Act), may authorize

2 nonrevokable disclosure of all financial records maintained

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

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

5 access to such information has been terminated, by the

6 investigative agency responsible for the conduct of such

7 investigation, for an authorized security purpose.

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

9 and dated statement of the customer which identifies the

10 financial records which are authorized to be disclosed.

11 Such statement may also authorize the disclosure of finan12 cial records of accounts opened during the period covered

13 by the consent agreement which are not identifiable at the

14 time such consent is provided. A copy of such statement

15 shall be provided by the investigative agency concerned to

16 the financial institution from which disclosure is sought,

17 together with the certification required pursuant to section

18 1103(b) (12 U.S.C. 3403(b)).

19 ‘‘(3) The rights of the customer established by sub20 section (c), above, shall pertain to any disclosures made

21 pursuant to this subsection.

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

23 President pursuant to section 802(D) of the National Se24 curity Act of 1947 (as added by section 2 of this Act),

25 shall fully inform the Permanent Select Committee on In-
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1 telligence of the House of Representatives and the Select

2 Committee on Intelligence of the Senate concerning the

3 number of requests for financial records made pursuant

4 to this section.’’.

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

6 ESPIONAGE DEVICES.

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

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

9 the following new section:

10 ‘‘POSSESSION OF ESPIONAGE DEVICES

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

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

13 the design and capability of which renders it primarily

14 useful for the purpose of surreptitiously collecting or com15 municating information, with the intent of utilizing such

16 device or equipment to undertake actions which would vio17 late section 793, 794, 794a (as added by section 6 of this

18 Act), or 798 of this title, or section 783(b) of title 50,

19 United States Code, shall be fined not more than $10,000

20 or imprisoned not more than 5 years, or both.’’.

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

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

23 Code, is amended by adding at the end thereof the follow24 ing new item:

‘‘799a. Possession of espionage devices.’’.
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1 SEC. 6. NEW OFFENSE FOR SALE OR TRANSFER TO FOR2 EIGN GOVERNMENTS DOCUMENTS AND

3 OTHER MATERIALS DESIGNATED AS TOP SE4 CRET.

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

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

7 following new section:

8 ‘‘SALE OR TRANSFER OF DOCUMENTS OR MATERIALS

9 MARKED AS ‘TOP SECRET’

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

11 otherwise transfer for any valuable consideration to any

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

13 agent or representative of a foreign government—

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

15 photograph, map, model, instrument, equipment,

16 electronic storage media, or other material, or por17 tion thereof, knowing that it is marked or otherwise

18 designated in any manner, pursuant to applicable

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

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

21 sketch, photograph, map, model, instrument, equip22 ment, electronic storage media, or other material, or

23 portion thereof, which has had such marking or des24 ignation removed without authority and the person

25 making the sale or transfer is aware of such re26 moval.
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1 ‘‘(2) Paragraph (1) shall not be deemed to be violated

2 by a person who makes such transfer pursuant to applica3 ble law or executive branch authority.

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

5 or not the information or material in question has been

6 properly marked or designated as ‘TOP SECRET’ pursu7 ant to applicable law or Executive order shall not be an

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

9 be a defense to any prosecution under this section that

10 the information or document in question has been offi11 cially released to the public by an authorized representa12 tive of the United States prior to the sale or transfer in

13 question.

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

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

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

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

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

19 section 794 the following new item:

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

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

21 TOP SECRET DOCUMENTS BY GOVERNMENT

22 EMPLOYEES AND CONTRACTORS.

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

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

25 the following new section:
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1 ‘‘REMOVAL AND RETENTION OF ‘TOP SECRET’

2 DOCUMENTS OR MATERIAL

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

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

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

6 becomes possessed of documents or materials classified at

7 the level of ‘Top Secret’ pursuant to applicable law or Ex8 ecutive order, knowingly removes such documents or mate9 rials without authority and retains such documents or ma10 terials at an unauthorized location shall be fined not more

11 than $1,000, or imprisoned for not more than one year,

12 or both.’’.

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

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

15 Code, is amended by adding at the end thereof the follow16 ing new item:

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

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

18 CASES INVOLVING ESPIONAGE OUTSIDE THE

19 UNITED STATES.

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

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

22 ‘‘§ 3239. Jurisdiction for espionage and related of23 fenses

24 ‘‘The trial for any offense involving a violation of—
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1 ‘‘(a) section 793, 794, 794a (as added by sec2 tion 6 of this Act), 798, 798a (as added by section

3 5 of this Act), or subsection 1030(a)(1) of this title;

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

5 1947 as added by the Intelligence Identities Protec6 tion Act of 1982 (50 U.S.C. 421); or

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

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

9 783(c));

10 begun or committed upon the high seas or elsewhere out

11 of the jurisdiction of any particular state or district, may

12 be prosecuted in the District of Columbia, or in the East13 ern District of Virginia, or in any other district authorized

14 by law.’’.

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

16 of the United States Code is amended by striking out

‘‘[3239. Repealed.]’’

17 and inserting in lieu thereof:

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

18 SEC. 9. EXPANSION OF EXISTING STATUTE REGARDING

19 FORFEITURE OF COLLATERAL PROFITS OF

20 CRIME TO ADDITIONAL ESPIONAGE OF21 FENSES.

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

23 amended—
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1 (1) in subsection (a), by striking out ‘‘section

2 794 of this title’’ and inserting in lieu thereof ‘‘sec3 tions 793, 794, 794a (as added by section 6 of this

4 Act), 798, and 799a (as added by section 5 of this

5 Act) of this title and section 783 of title 50, United

6 States Code’’; and

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

8 new subsection:

9 ‘‘(e) For purposes of this section, convictions pursu10 ant to military courts-martial for offenses comparable to

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

12 6 of this Act), 798, and 799a (as added by section 5 of

13 this Act) of this title, or a violation of section 783 of title

14 50, or convictions by foreign courts for offenses which, if

15 perpetrated within the United States, would constitute of16 fenses under sections 793, 794, 794a (as added by section

17 6 of this Act), 798, and 799a (as added by section 5 of

18 this Act) of this title, or a violation of section 783 of title

19 50 shall be considered as convictions for which actions

20 may be ordered pursuant to this section.’’.
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1 SEC. 10. DENIAL OF ANNUITIES OR RETIRED PAY TO PER2 SONS CONVICTED OF ESPIONAGE IN FOR3 EIGN COURTS INVOLVING UNITED STATES IN4 FORMATION.

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

6 amended by adding at the end thereof the following new

7 subsection:

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

9 an offense within the meaning of such subsections is es10 tablished if the Attorney General certifies to the agency

11 employing or formerly employing the person concerned—

12 ‘‘(i) that an individual subject to this chapter

13 has been convicted by an impartial court of appro14 priate jurisdiction within a foreign country in cir15 cumstances in which the conduct violates the provi16 sions of law enumerated in subsections (b)(1) and

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

18 conduct taken place within the United States, and

19 that such conviction is not being appealed or that

20 final action has been taken on such appeal;

21 ‘‘(2) that such conviction was obtained in ac22 cordance with procedures that provided the defend23 ant due process rights comparable to such rights

24 provided by the United States Constitution, and

25 such conviction was based upon evidence which
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1 would have been admissible in the courts of the

2 United States; and

3 ‘‘(3) that such conviction occurred after the

4 date of enactment of this subsection:

5 Provided, That any certification made pursuant to this

6 paragraph shall be subject to review by the United States

7 Court of Claims based upon the application of the individ8 ual concerned, or his or her attorney, alleging that any

9 of the conditions set forth in subsections (1), (2), (3),

10 herein, as certified by the Attorney General, have not been

11 satisfied in his or her particular circumstances. Should the

12 court determine that any of these conditions has not been

13 satisfied in such case, the court shall order any annuity

14 or retirement benefit to which the person concerned is en15 titled to be restored and shall order that any payments

16 which may have been previously denied or withheld to be

17 paid by the department or agency concerned.

18 SEC. 11. AUTHORIZING THE FBI TO OBTAIN CONSUMER RE19 PORTS ON PERSONS BELIEVED TO BE

20 AGENTS OF FOREIGN POWERS.

21 Section 608 of the Consumer Credit Protection Act

22 (15 U.S.C. 1681f) is amended—

23 (1) by inserting ‘‘(a)’’ before ‘‘Notwithstand24 ing’’; and
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1 (2) by inserting at the end thereof the following

2 new subsections:

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

4 a consumer reporting agency shall, upon request, furnish

5 a consumer report to the Federal Bureau of Investigation,

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

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

8 consumer reporting agency that such records are sought

9 in connection with an authorized foreign counterintel10 ligence investigation and that there are specific and

11 articulable facts giving reason to believe that the person

12 to whom the requested consumer report relates is an agent

13 of a foreign power, as defined in section 101 of the For14 eign Intelligence Surveillance Act of 1978 (50 U.S.C.

15 1801).

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

17 a consumer reporting agency shall furnish identifying in18 formation respecting any consumer, limited to name, ad19 dress, former addresses, places of employment, or former

20 places of employment, to a representative of the Federal

21 Bureau of Investigation when presented with a written re22 quest signed signed by the Director of the Federal Bureau

23 of Investigation, or the Director’s designee, stating that

24 the information is necessary to the conduct of an author25 ized foreign counterintelligence investigation.
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1 ‘‘(d) No consumer reporting agency, or officer, em2 ployee, or agent of such institution shall disclose to any

3 person that the Federal Bureau of Investigation has

4 sought or obtained a consumer report or identifying infor5 mation respecting any consumer under this section.

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

7 Bureau of Investigation shall fully inform the Permanent

8 Select Committee on Intelligence of the House of Rep9 resentatives and the Select Committee on Intelligence of

10 the Senate concerning all requests made under subsections

11 (b) and (c).’’.

12 SEC. 12. TO PROVIDE FOR REWARDS FOR INFORMATION

13 CONCERNING ESPIONAGE.

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

15 States Code, is amended—

16 (1) by inserting at the end of the chapter head17 ing ‘‘AND ESPIONAGE’’;

18 (2) in section 3071, by inserting ‘‘(a)’’ imme19 diately before ‘‘With respect to’’;

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

21 the following new subsection:

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

23 directed at United States information classified in the in24 terest of national security, the Attorney General may re25 ward any individual who furnishes information—
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1 ‘‘(1) leading to the arrest or conviction, in any

2 country, of any individual or individuals for commis3 sion of an act of espionage against the United

4 States;

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

6 country, of any individual or individuals for conspir7 ing or attempting to commit an act of espionage

8 against the United States; or

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

10 an act of espionage against the United States.’’.

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

12 United States Code, is amended by striking out

13 ‘‘$500,000’’ and inserting in lieu thereof ‘‘$1,000,000’’.

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

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

16 the following new paragraphs:

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

18 a violation of sections 794, 794a (as added by sec19 tion 6 of this Act), 798, or 799a (as added by sec20 tion 5 of this Act) of this title or section 783 of title

21 50, United States Code.

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

23 interests of national security’ means information

24 originated, owned, or possessed by the United States

25 Government concerning the national defense and for-
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1 eign relations of the United States that has been de2 termined pursuant to law or Executive order to re3 quire protection against unauthorized disclosure and

4 that has been so designated.’’.

5 SEC. 13. TO PROVIDE A COURT ORDER PROCESS FOR PHYS6 ICAL SEARCHES UNDERTAKEN FOR FOREIGN

7 INTELLIGENCE PURPOSES.

8 The Foreign Intelligence Surveillance Act of 1978 is

9 amended by inserting at the end thereof the following new

10 title:

11 ‘‘TITLE IV—PHYSICAL SEARCHES WITHIN THE

12 UNITED STATES FOR FOREIGN INTEL13 LIGENCE PURPOSES

14 ‘‘AUTHORIZATION OF PHYSICAL SEARCHES FOR FOREIGN

15 INTELLIGENCE PURPOSES

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

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

18 empowered the Attorney General to approve applications

19 to the Foreign Intelligence Surveillance Court, and a judge

20 of that court to whom application is made may, notwith21 standing any other law, grant an order, in conformity with

22 section 403, approving a physical search in the United

23 States, for the purpose of collecting foreign intelligence in24 formation of—
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1 ‘‘(1) the property, information or material of a

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

3 and (3) of this Act, or

4 ‘‘(2) the premises, property, information or ma5 terial of an agent of a foreign power or a foreign

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

7 of this Act.

8 ‘‘(b) The Foreign Intelligence Surveillance Court

9 shall have jurisdiction to hear applications for and grant

10 orders approving a physical search for the purpose of ob11 taining foreign intelligence information anywhere within

12 the United States under the procedures set forth in this

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

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

15 judge denies an application for an order authorizing a

16 physical search under this title, such judge shall provide

17 immediately for the record a written statement of each

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

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

20 Court of Review.

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

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

23 If such court determines that the application was properly

24 denied, the Court shall immediately provide for the record

25 a written statement of each reason for its decision and,
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1 on petition of the United States for a writ of certiorari,

2 the record shall be transmitted under seal to the Supreme

3 Court, which shall have jurisdiction to review such deci4 sion.

5 ‘‘(d) Judicial proceedings under this title shall be con6 cluded as expeditiously as possible. The record of proceed7 ings under this title, including applications made and or8 ders granted, shall be maintained under security measures

9 established by the Chief Justice of the United States in

10 consultation with the Attorney General and the Director

11 of Central Intelligence.

12 ‘‘APPLICATION FOR AN ORDER

13 ‘‘SEC. 402(a). Each application for an order approv14 ing a physical search under this title shall be made by

15 a Federal officer in writing upon oath or affirmation to

16 a judge of the Foreign Intelligence Surveillance Court.

17 Each application shall require the approval of the Attor18 ney General based upon the Attorney General’s finding

19 that it satisfied the criteria and requirements for such ap20 plication as set forth in this title. It shall include—

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

22 the target of the search;

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

24 General by the President of the United States and

25 the approval of the Attorney General to make the

26 application;
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1 ‘‘(3) the identity of the Federal officer making

2 the application and a detailed description of the

3 premises or property to be searched and of the infor4 mation, material, or property to be seized, repro5 duced, or altered;

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

7 relied upon by the applicant to justify the appli8 cant’s belief that—

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

10 foreign power or an agent of a foreign power;

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

12 searched contains foreign intelligence informa13 tion;

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

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

16 transit to or from a foreign power or an agent

17 of a foreign power;

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

19 procedures;

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

21 physical search is to be conducted;

22 ‘‘(7) a statement of the facts concerning all pre23 vious applications that have been made to any judge

24 under this title involving any of the persons, prem-
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1 ises, or property specified in the application, and the

2 action taken on each previous applications;

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

4 search described in section 406(b), below, which in5 volves any of the persons, premises, or property

6 specified in the application; and

7 ‘‘(9) a statement that the purpose of the phys8 ical search is to obtain foreign intelligence informa9 tion.

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

11 such other information as may be necessary to make the

12 determinations required by section 403.

13 ‘‘ISSUANCE OF AN ORDER

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

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

16 as requested or as modified approving the physical search

17 if the judge finds that—

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

19 General to approve applications for physical searches

20 for foreign intelligence purposes;

21 ‘‘(2) the application has been made by a Fed22 eral officer and approved by the Attorney General;

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

24 applicant there is probable cause to believe that—

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

26 foreign power or an agent of a foreign power:
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1 Provided, That no United States person may be

2 considered an agent of a foreign power solely

3 upon the basis of activities protected by the

4 first amendment to the Constitution of the

5 United States;

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

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

8 transit to or from an agent of a foreign power

9 or a foreign power; and

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

11 property can reasonably be expected to yield

12 foreign intelligence information which cannot

13 reasonably be obtained by normal investigative

14 means; and

15 ‘‘(4) the proposed minimization procedures

16 meet the definition of minimization contained in this

17 title; and

18 ‘‘(5) the application which has been filed con19 tains all statements required by section 402.

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

21 section shall—

22 ‘‘(1) specify—

23 ‘‘(A) the Federal officer or officers author24 ized to conduct the physical search and the
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1 identity, if known, or a description of the target

2 of the physical search;

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

4 searched and the information, material, or

5 property to be seized, altered, or reproduced;

6 ‘‘(C) the type of foreign intelligence infor7 mation sought to be acquired; and

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

9 the physical search is to be conducted and,

10 whenever more than one physical search is au11 thorized under the order, the authorized scope

12 of each search and what minimization proce13 dures shall apply to the information acquired by

14 each search;

15 ‘‘(2) direct—

16 ‘‘(A) that the minimization procedures be

17 followed;

18 ‘‘(B) that, upon the request of the appli19 cant, a specified landlord, custodian, or other

20 specified person furnish the applicant forthwith

21 all information, facilities, or assistance nec22 essary to accomplish the physical search in such

23 a manner as will protect its secrecy and

24 produce a minimum of interference with the ac25 tivities of the landlord, custodian, or other per-
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1 son; and that such landlord, custodian or other

2 person maintain under security procedures ap3 proved by the Attorney General and the Direc4 tor of Central Intelligence any records concern5 ing the search or the aid furnished that such

6 person wishes to retain;

7 ‘‘(C) that the physical search be under8 taken within 30 days of the date of the order,

9 or, if the physical search is of the property, in10 formation or material of a foreign power as de11 fined in section 101(a)(1), (2), or (3) of this

12 Act, that such search be undertaken within one

13 year of the order; and

14 ‘‘(D) that the federal officer conducting

15 the physical search promptly report to the court

16 the circumstances and results of the physical

17 search.

18 ‘‘(c) At any time after a physical search has been

19 carried out, the judge to whom the return has been made

20 may assess compliance with the minimization procedures

21 by reviewing the circumstances under which information

22 concerning United States persons was acquired, retained,

23 or disseminated.
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1 ‘‘(d) Application made and orders granted under this

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

3 from the date of the application.

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

5 of the residence of a United States person authorized by

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

7 in section 406(b), has been conducted, the Attorney Gen8 eral shall provide the United States person with an inven9 tory which shall include—

10 ‘‘(1) existence or not of a court order authoriz11 ing the physical search and the date of the order;

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

13 identification of the premises or property searched;

14 and

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

16 property seized, altered, or reproduced.

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

18 Attorney General to a judge of the Foreign Intelligence

19 Surveillance Court the provision of the inventory required

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

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

22 of the inventory may, upon a similar showing, be post23 poned indefinitely. The denial of a request for such post24 ponements may be reviewed as provided in section 401.
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1 ‘‘USE OF INFORMATION

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

3 search conducted pursuant to this title concerning any

4 United States person may be used and disclosed by Fed5 eral officers and employees without the consent of the

6 United States person only in accordance with the mini7 mization procedures required by this title. No information

8 acquired from a physical search pursuant to this title may

9 be used or disclosed by Federal officers or employees ex10 cept for lawful purposes.

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

12 shall be disclosed for law enforcement purposes unless

13 such disclosure is accompanied by a statement that such

14 information, or any information derived therefrom, may

15 only be used in a criminal proceeding with the advance

16 authorization of the Attorney General.

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

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

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

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

21 United States, against an aggrieved person, any informa22 tion obtained or derived from a physical search of the

23 premises or property of that aggrieved person pursuant

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

25 to the trial, hearing, or the other proceeding or at a rea-
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1 sonable time prior to an effort to so disclose or so use

2 that information or submit it in evidence, notify the ag3 grieved person and the court or other authority in which

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

5 States intends to so disclose or so use such information.

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

7 thereof intends to enter into evidence or otherwise use of

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

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

10 body, or other authority of a State or a political subdivi11 sion thereof against an aggrieved person any information

12 obtained or derived from a physical search of the premises

13 or property of that aggrieved person pursuant to the au14 thority of this title, the State or political subdivision there15 of shall notify the aggrieved person, the court or other

16 authority in which the information is to be disclosed or

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

18 subdivision thereof intends to so disclose or so use such

19 information.

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

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

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

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

24 or before any court, department, officer, agency, regu25 latory body, or other authority of the United States, a
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1 State, or a political subdivision thereof, may move to sup2 press the evidence obtained or derived from such search

3 on the grounds that—

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

5 or

6 ‘‘(2) the physical search was not made in con7 formity with an order of authorization or approval.

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

9 other proceeding unless there was no opportunity to make

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

11 of the motion.

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

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

14 is made pursuant to subsection (e), or whenever any mo15 tion or request is made by an aggrieved person pursuant

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

17 State before any court or other authority of the United

18 States or any State to discover or obtain applications or

19 orders or other materials relating to a physical search au20 thorized by this title or to discover, obtain, or suppress

21 evidence or information obtained or derived from a phys22 ical search authorized by this title, the United States dis23 trict court or, where the motion is made before another

24 authority, the United States district court in the same dis25 trict as the authority shall, notwithstanding any other law,
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1 if the Attorney General files an affidavit under oath that

2 disclosure or an adversary hearing would harm the na3 tional security of the United States, review in camera and

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

5 relating to the physical search as may be necessary to de6 termine whether the physical search of the aggrieved per7 son was lawfully authorized and conducted. In making this

8 determination, the court may disclose to the aggrieved per9 son, under appropriate security procedures and protective

10 orders, portions of the application, order, or other mate11 rials relating to the physical search only where such disclo12 sure is necessary to make an accurate determination of

13 the legality of the physical search.

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

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

16 lawfully authorized or conducted, it shall, in accordance

17 with the requirements of law, suppress the evidence which

18 was unlawfully obtained or derived from the physical

19 search of the aggrieved person or otherwise grant the mo20 tion of the aggrieved person. If the court determines that

21 the physical search was lawfully authorized or conducted,

22 it shall deny the motion of the aggrieved person except

23 to the extent that due process requires discovery or disclo24 sure.
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1 ‘‘(h) Orders granting motions or requests under sub2 section (g), decisions under this section that a physical

3 search was not lawfully authorized or conducted, and or4 ders of the United States district court requiring review

5 or granting disclosure of applications, orders or other ma6 terials relating to the physical search shall be final orders

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

8 several States except a United States court of appeals and

9 the Supreme Court.

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

11 or disclosure of information obtained or derived from a

12 physical search shall apply to information obtained or de13 rived from a search conducted without a court order to

14 obtain foreign intelligence information which is not a phys15 ical search as defined in this title solely because the exist16 ence of exigent circumstances would not require a warrant

17 for law enforcement purposes.

18 ‘‘OVERSIGHT

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

20 General shall fully inform the House Permanent Select

21 Committee on Intelligence and the Senate Select Commit22 tee on Intelligence concerning all physical searches con23 ducted pursuant to this title, and all other searches, except

24 those reported under section 108 of this Act, conducted

25 in the United States for foreign intelligence purposes. On

26 an annual basis the Attorney General shall also provide
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1 to those committees a report setting forth with respect to

2 the preceding calendar year—

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

4 orders approving physical searches under this title;

5 and

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

7 granted, modified, or denied.

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

9 order to obtain foreign intelligence information which is

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

11 the existence of exigent circumstances would not require

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

13 such search, including a description of the exigent cir14 cumstances, shall be maintained by the Attorney General.

15 Each such report shall be transmitted to the Foreign In16 telligence Surveillance Court promptly after the search is

17 conducted.

18 ‘‘AUTHORITY FOR INTELLIGENCE SEARCHES

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

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

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

22 States for foreign intelligence purposes, and an order is23 sued under this title authorizing a physical search shall

24 constitute a search warrant authorized by law for purposes

25 of any other law.
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1 ‘‘(b) Searches conducted in the United States to col2 lect foreign intelligence information, other than physical

3 searches as defined in this title and electronic surveillance

4 as defined in this Act, and physical searches conducted

5 in the United States without a court order to collect for6 eign intelligence information may be conducted only pur7 suant to regulations issued by the Attorney General. Such

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

9 the Select Committee on Intelligence of the Senate and

10 the Permanent Select Committee on Intelligence of the

11 House of Representatives at least 14 days prior to the tak12 ing effect. Any regulations issued by the Attorney General

13 regarding such searches which were in effect as of June

14 1, 1990, shall be deemed to be regulations required by

15 this subsection.

16 ‘‘PENALTIES

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

18 offense if he intentionally—

19 ‘‘(1) under color of law for the purpose of ob20 taining foreign intelligence information, engages in

21 physical search within the United States except as

22 authorized by statute; or

23 ‘‘(2) discloses or uses information obtained

24 under color of law by physical search within the

25 United States, knowing or having reason to know

26 that the information was obtained through physical
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1 search not authorized by statute, for the purpose of

2 obtaining intelligence information.

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

4 under subsection (a) that the defendant was a law enforce5 ment or investigative officer engaged in the course of his

6 official duties and the physical search was authorized by

7 and conducted pursuant to a search warrant or court

8 order of a court of competent jurisdiction.

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

10 is punishable by a fine of not more than $10,000 or im11 prisonment for not more than five years, or both.

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

13 over an offense under this section if the person committing

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

15 at the time the offense was committed.

16 ‘‘CIVIL LIABILITY

17 ‘‘SEC. 408. CIVIL ACTION.—An aggrieved person,

18 other than a foreign power or an agent of a foreign power,

19 as defined in section 101 (a) or (b)(1)(A), respectively,

20 of this Act, whose premises, property, information, or ma21 terial has been subjected to a physical search within the

22 United States or about whom information obtained by

23 such a physical search has been disclosed or used in viola24 tion of section 407 shall have a cause of action against

25 any person who committed such violation and shall be en26 titled to recover—
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1 ‘‘(a) actual damages;

2 ‘‘(b) punitive damages; and

3 ‘‘(c) reasonable attorney’s fees and other inves4 tigative and litigation costs reasonably incurred.

5 ‘‘DEFINITIONS

6 ‘‘SEC. 409. As used in this title:

7 ‘‘(a) The terms ‘foreign power,’ ‘agent of a for8 eign power,’ ‘international terrorism,’ ‘sabotage,’

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

10 ‘United States person,’ ‘United States’,’ ‘person,’

11 and ‘State’ shall have the same meaning as in Sec12 tion 101 of this Act.

13 ‘‘(b) ‘Physical search’ means any physical intru14 sion into premises or property (including examina15 tion of the interior of property by technical means)

16 or any seizure, reproduction or alteration of infor17 mation, material or property, under circumstances in

18 which a person has a reasonable expectation of pri19 vacy and a warrant would be required for law en20 forcement purposes, but does not include ‘electronic

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

22 Act.

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

24 physical search, means—

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

26 adopted by the Attorney General, that are rea-
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1 sonably designed in light of the purposes and

2 technique of the particular physical search, to

3 minimize the acquisition and retention, and pro4 hibit the dissemination, of non-publicly available

5 information concerning unconsenting United

6 States persons consistent with the need of the

7 United States persons consistent with the need

8 of the United States to obtain, produce, and

9 disseminate foreign intelligence information;

10 ‘‘(2) procedures that require that non-pub11 licly available information, which is not foreign

12 intelligence information, as defined in sub13 section 101(e)(1) of this Act, shall not be dis14 seminated in a manner that identifies any

15 United States person, without such person’s

16 consent, unless such person’s identity is nec17 essary to understand such foreign intelligence

18 information or assess its importance; and

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

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

21 dissemination of information that is evidence of

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

23 be committed and that is to be retained or dis24 seminated for law enforcement purposes.
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1 ‘‘(d) ‘Aggrieved person’ means a person whose

2 premises, property, information, or material is the

3 target of physical search or any other person whose

4 premises, property, information, or material was

5 subject to physical search.

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

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

8 Act.

9 ‘‘(f) ‘Court of Review’ means the court estab10 lished by section 103(b) of this Act.

11 ‘‘EFFECTIVE DATE

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

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

14 except that any physical search approved by the Attorney

15 General to gather foreign intelligence information shall

16 not be deemed unlawful for failure to follow the procedures

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

18 following the date of enactment of this title pursuant to

19 regulations issued by the Attorney General, which are in

20 the possession of the Select Committee on Intelligence of

21 the Senate and the Permanent Select Committee on Intel22 ligence of the House of Representatives prior to the date

23 of enactment.’’.

Æ

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