II

Calendar No. 442

105TH CONGRESS

2D SESSION S. 2052

[Report No. 105–185]

To authorize appropriations for fiscal year 1999 for intelligence and intelligence-related activities of the United States Government, the Community Management Account, and the Central Intelligence Retirement and

Disability System, and for other purposes.

IN THE SENATE OF THE UNITED STATES

MAY 7, 1998

Mr. SHELBY, from the Select Committee on Intelligence, reported the following original bill; which was read twice and referred to the Committee on

Armed Services, pursuant to the order of section 3(b) of S. Res. 400 for

a period not to exceed 30 days of session

JUNE 26, 1998

Committee on Armed Services discharged; considered, amended, and read the

third time; ordered to be placed on the calendar

A BILL

To authorize appropriations for fiscal year 1999 for intelligence and intelligence-related activities of the United

States Government, the Community Management Account, and the Central Intelligence Retirement and Disability System, and for other purposes.
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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; TABLE OF CONTENTS.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Intelligence Authorization Act for Fiscal Year 1999’’.

6 (b) TABLE OF CONTENTS.—The table of contents for

7 this Act is as follows:

Sec. 1. Short title; table of contents.

TITLE I—INTELLIGENCE ACTIVITIES

Sec. 101. Authorization of appropriations.

Sec. 102. Classified schedule of authorizations.

Sec. 103. Personnel ceiling adjustments.

Sec. 104. Community Management Account.

TITLE II—CENTRAL INTELLIGENCE AGENCY RETIREMENT AND

DISABILITY SYSTEM

Sec. 201. Authorization of appropriations.

TITLE III—GENERAL PROVISIONS

Sec. 301. Increase in employee compensation and benefits authorized by law.

Sec. 302. Restriction on conduct of intelligence activities.

Sec. 303. Extension of application of sanctions laws to intelligence activities.

Sec. 304. Extension of authority to engage in commercial activities as security

for intelligence collection activities.

Sec. 305. Modification of National Security Education Program.

Sec. 306. Technical amendments.

Sec. 307. Authority to direct competitive analysis of analytical products having

national importance.

Sec. 308. Annual study and report on the safety and security of Russian nuclear facilities and nuclear military forces.

Sec. 309. quadrennial intelligence review.

Sec. 310. Designation of Headquarters Building of Central Intelligence Agency

as the George Herbert Walker Bush Center for Central Intelligence.

TITLE IV—CENTRAL INTELLIGENCE AGENCY

Sec. 401. Extension of separation pay program for voluntary separation of CIA

employees.

Sec. 402. Additional duties for Inspector General of Central Intelligence

Agency.

TITLE V—DISCLOSURE OF INFORMATION TO CONGRESS

Sec. 501. Encouragement of disclosure of certain information to Congress.
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TITLE VI—FOREIGN INTELLIGENCE AND INTERNATIONAL

TERRORISM INVESTIGATIONS

Sec. 601. Pen registers and trap and trace devices in foreign intelligence and

international terrorism investigations.

Sec. 602. Access to certain business records for foreign intelligence and international terrorism investigations.

Sec. 603. Conforming and clerical amendments.

1 TITLE I—INTELLIGENCE

2 ACTIVITIES

3 SEC. 101. AUTHORIZATION OF APPROPRIATIONS.

4 Funds are hereby authorized to be appropriated for

5 fiscal year 1999 for the conduct of the intelligence and

6 intelligence-related activities of the following elements of

7 the United States Government:

8 (1) The Central Intelligence Agency.

9 (2) The Department of Defense.

10 (3) The Defense Intelligence Agency.

11 (4) The National Security Agency.

12 (5) The Department of the Army, the Depart13 ment of the Navy, and the Department of the Air

14 Force.

15 (6) The Department of State.

16 (7) The Department of the Treasury.

17 (8) The Department of Energy.

18 (9) The Federal Bureau of Investigation.

19 (10) The National Reconnaissance Office.

20 (11) The National Imagery and Mapping Agen21 cy.
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1 SEC. 102. CLASSIFIED SCHEDULE OF AUTHORIZATIONS.

2 (a) SPECIFICATIONS OF AMOUNTS AND PERSONNEL

3 CEILINGS.—The amounts authorized to be appropriated

4 under section 101, and the authorized personnel ceilings

5 as of September 30, 1999, for the conduct of the intel6 ligence and intelligence-related activities of the elements

7 listed in such section, are those specified in the classified

8 Schedule of Authorizations prepared to accompany the

9 conference report on the bill H.R. 3694 of the One Hun10 dred Fifth Congress.

11 (b) AVAILABILITY OF CLASSIFIED SCHEDULE OF AU12 THORIZATIONS.—The Schedule of Authorizations shall be

13 made available to the Committees on Appropriations of

14 the Senate and House of Representatives and to the Presi15 dent. The President shall provide for suitable distribution

16 of the Schedule, or of appropriate portions of the Sched17 ule, within the Executive Branch.

18 SEC. 103. PERSONNEL CEILING ADJUSTMENTS.

19 (a) AUTHORITY FOR ADJUSTMENTS.—With the ap20 proval of the Director of the Office of Management and

21 Budget, the Director of Central Intelligence may authorize

22 employment of civilian personnel in excess of the number

23 authorized for fiscal year 1999 under section 102 when

24 the Director of Central Intelligence determines that such

25 action is necessary to the performance of important intel26 ligence functions, except that the number of personnel em-
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1 ployed in excess of the number authorized under such sec2 tion may not, for any element of the intelligence commu3 nity, exceed two percent of the number of civilian person4 nel authorized under such section for such element.

5 (b) NOTICE TO INTELLIGENCE COMMITTEES.—The

6 Director of Central Intelligence shall promptly notify the

7 Permanent Select Committee on Intelligence of the House

8 of Representatives and the Select Committee on Intel9 ligence of the Senate whenever the Director exercises the

10 authority granted by this section.

11 SEC. 104. COMMUNITY MANAGEMENT ACCOUNT.

12 (a) AUTHORIZATION OF APPROPRIATIONS.—

13 (1) AUTHORIZATION.—There is authorized to

14 be appropriated for the Community Management

15 Account of the Director of Central Intelligence for

16 fiscal year 1999 the sum of $173,633,000.

17 (2) AVAILABILITY OF CERTAIN FUNDS.—Within

18 such amount, funds identified in the classified

19 Schedule of Authorizations referred to in section

20 102(a) for the Advanced Research and Development

21 Committee, the Advanced Technology Group, and

22 the Environmental Intelligence and Applications

23 Program shall remain available until September 30,

24 2000.
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1 (b) AUTHORIZED PERSONNEL LEVELS.—The ele2 ments within the Community Management Account of the

3 Director of Central Intelligence are authorized a total of

4 283 full-time personnel as of September 30, 1999. Person5 nel serving in such elements may be permanent employees

6 of the Community Management Account element or per7 sonnel detailed from other elements of the United States

8 Government.

9 (c) CLASSIFIED AUTHORIZATIONS.—

10 (1) AUTHORIZATION OF APPROPRIATIONS.—In

11 addition to amounts authorized to be appropriated

12 for the Community Management Account by sub13 section (a), there is also authorized to be appro14 priated for the Community Management Account for

15 fiscal year 1999 such additional amounts as are

16 specified in the classified Schedule of Authorizations

17 referred to in section 102(a). Such additional

18 amounts shall remain available until September 30,

19 2000.

20 (2) AUTHORIZATION OF PERSONNEL.—In addi21 tion to the personnel authorized by subsection (b)

22 for elements of the Community Management Ac23 count as of September 30, 1999, there is hereby au24 thorized such additional personnel for such elements
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1 as of that date as is specified in the classified Sched2 ule of Authorizations.

3 (d) REIMBURSEMENT.—Except as provided in section

4 113 of the National Security Act of 1947 (50 U.S.C.

5 404h), during fiscal year 1999, any officer or employee

6 of the United States or member of the Armed Forces who

7 is detailed to the staff of an element within the Commu8 nity Management Account from another element of the

9 United States Government shall be detailed on a reimburs10 able basis, except that any such officer, employee, or mem11 ber may be detailed on a nonreimbursable basis for a pe12 riod of less than one year for the performance of tem13 porary functions as required by the Director of Central

14 Intelligence.

15 (e) NATIONAL DRUG INTELLIGENCE CENTER.—

16 (1) IN GENERAL.—Of the amount authorized to

17 be appropriated in subsection (a), the amount of

18 $27,000,000 shall be available for the National

19 Drug Intelligence Center. Within such amount,

20 funds provided for research, development, test, and

21 evaluation purposes shall remain available until Sep22 tember 30, 2000, and funds provided for procure23 ment purposes shall remain available until Septem24 ber 30, 2001.
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1 (2) TRANSFER OF FUNDS.—The Director of

2 Central Intelligence shall transfer to the Attorney

3 General of the United States funds available for the

4 National Drug Intelligence Center under paragraph

5 (1). The Attorney General shall utilize funds so

6 transferred for the activities of the Center.

7 (3) LIMITATION.—Amounts available for the

8 Center may not be used in contravention of the pro9 visions of section 103(d)(1) of the National Security

10 Act of 1947 (50 U.S.C. 403–3(d)(1)).

11 (4) AUTHORITY OVER CENTER.—Notwithstand12 ing any other provision of law, the Attorney General

13 shall retain full authority over the operations of the

14 Center.

15 TITLE II—CENTRAL INTEL16 LIGENCE AGENCY RETIRE17 MENT AND DISABILITY SYS18 TEM

19 SEC. 201. AUTHORIZATION OF APPROPRIATIONS.

20 There is authorized to be appropriated for the Cen21 tral Intelligence Agency Retirement and Disability Fund

22 for fiscal year 1999 the sum of $201,500,000.
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1 TITLE III—GENERAL

2 PROVISIONS

3 SEC. 301. INCREASE IN EMPLOYEE COMPENSATION AND

4 BENEFITS AUTHORIZED BY LAW.

5 Appropriations authorized by this Act for salary, pay,

6 retirement, and other benefits for Federal employees may

7 be increased by such additional or supplemental amounts

8 as may be necessary for increases in such compensation

9 or benefits authorized by law.

10 SEC. 302. RESTRICTION ON CONDUCT OF INTELLIGENCE

11 ACTIVITIES.

12 The authorization of appropriations by this Act shall

13 not be deemed to constitute authority for the conduct of

14 any intelligence activity which is not otherwise authorized

15 by the Constitution or the laws of the United States.

16 SEC. 303. EXTENSION OF APPLICATION OF SANCTIONS

17 LAWS TO INTELLIGENCE ACTIVITIES.

18 Section 905 of the National Security Act of 1947 (50

19 U.S.C. 441d) is amended by striking out ‘‘January 6,

20 1999’’ and inserting in lieu thereof ‘‘January 6, 2000’’.

21 SEC. 304. EXTENSION OF AUTHORITY TO ENGAGE IN COM22 MERCIAL ACTIVITIES AS SECURITY FOR IN23 TELLIGENCE COLLECTION ACTIVITIES.

24 Section 431(a) of title 10, United States Code, is

25 amended in the second sentence by striking out ‘‘Decem-
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1 ber 31, 1998’’ and inserting in lieu thereof ‘‘December 31,

2 2000’’.

3 SEC. 305. MODIFICATION OF NATIONAL SECURITY EDU4 CATION PROGRAM.

5 (a) ASSISTANCE FOR COUNTERPROLIFERATION

6 STUDIES.—The David L. Boren National Security Edu7 cation Act of 1991 (50 U.S.C. 1901 et seq.) is amended

8 as follows:

9 (1) In section 801 (50 U.S.C. 1901), by insert10 ing ‘‘counterproliferation studies,’’ after ‘‘area stud11 ies,’’ each place it appears in subsections (b)(7) and

12 (c)(2).

13 (2) In section 802 (50 U.S.C. 1902)—

14 (A) by inserting ‘‘counterproliferation

15 studies,’’ after ‘‘area studies,’’ each place it ap16 pears in paragraphs (1)(B)(i), (1)(C), and (4)

17 of subsection (a); and

18 (B) by inserting ‘‘counterproliferation

19 study,’’ after ‘‘area study,’’ each place it ap20 pears subparagraphs (A)(ii) and (B)(ii) of sub21 section (b)(2).

22 (3) In section 803(b)(8) (50 U.S.C.

23 1903(b)(8)), by striking out ‘‘and area’’ and insert24 ing in lieu thereof ‘‘area, and counterproliferation’’.
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1 (4) In section 806(b)(1) (50 U.S.C.

2 1906(b)(1)), by striking out ‘‘and area’’ and insert3 ing in lieu thereof ‘‘area, and counterproliferation’’.

4 (b) REVISION OF MEMBERSHIP OF NATIONAL SECU5 RITY EDUCATION BOARD.—Section 803(b) of that Act (50

6 U.S.C. 1903(b)) is further amended—

7 (1) by striking out paragraph (6); and

8 (2) by inserting in lieu thereof the following

9 new paragraph (6):

10 ‘‘(6) The Secretary of Energy.’’.

11 SEC. 306. TECHNICAL AMENDMENTS.

12 (a) CENTRAL INTELLIGENCE AGENCY ACT OF

13 1949.—(1) Section 5(a)(1) of the Central Intelligence

14 Agency Act of 1949 (50 U.S.C. 403f(a)(1)) is amended—

15 (A) by striking out ‘‘subparagraphs (B) and (C)

16 of section 102(a)(2), subsections (c)(5)’’ and insert17 ing in lieu thereof ‘‘paragraphs (2) and (3) of sec18 tion 102(a), subsections (c)(6)’’; and

19 (B) by striking out ‘‘(50 U.S.C. 403(a)(2)’’ and

20 inserting in lieu thereof ‘‘(50 U.S.C. 403(a)’’.

21 (2) Section 6 of that Act (50 U.S.C. 403g) is amend22 ed by striking out ‘‘section 103(c)(5) of the National Secu23 rity Act of 1947 (50 U.S.C. 403–3(c)(5))’’ and inserting

24 in lieu thereof ‘‘section 103(c)(6) of the National Security

25 Act of 1947 (50 U.S.C. 403–3(c)(6))’’.
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1 (b) CENTRAL INTELLIGENCE AGENCY RETIREMENT

2 ACT.—Section 201(c) of the Central Intelligence Agency

3 Retirement Act (50 U.S.C. 2011(c)) is amended by strik4 ing out ‘‘section 103(c)(5) of the National Security Act

5 of 1947 (50 U.S.C. 403–3(c)(5))’’ and inserting in lieu

6 thereof ‘‘section 103(c)(6) of the National Security Act

7 of 1947 (50 U.S.C. 403–3(c)(6))’’.

8 SEC. 307. AUTHORITY TO DIRECT COMPETITIVE ANALYSIS

9 OF ANALYTICAL PRODUCTS HAVING NA10 TIONAL IMPORTANCE.

11 Section 102(g)(2) of the National Security Act of

12 1947 (50 U.S.C. 403(g)(2)) is amended—

13 (1) by redesignating subparagraphs (D) and

14 (E) as subparagraphs (E) and (F), respectively; and

15 (2) by inserting after subparagraph (C) the fol16 lowing new subparagraph (D):

17 ‘‘(D) direct competitive analysis of analytical

18 products having National importance;’’.

19 SEC. 308. ANNUAL STUDY AND REPORT ON THE SAFETY

20 AND SECURITY OF RUSSIAN NUCLEAR FA21 CILITIES AND NUCLEAR MILITARY FORCES.

22 (a) ANNUAL STUDY.—The Director of Central Intel23 ligence shall, on an annual basis, conduct a study of the

24 safety and security of the nuclear facilities and nuclear

25 military forces in Russia.
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1 (b) ANNUAL REPORTS.—(1) The Director shall, on

2 an annual basis, submit to the committees referred to in

3 paragraph (4) an intelligence report assessing the safety

4 and security of the nuclear facilities and nuclear military

5 forces in Russia.

6 (2) Each report shall include a discussion of the fol7 lowing:

8 (A) The ability of the Russia Government to

9 maintain its nuclear military forces.

10 (B) Security arrangements at civilian and mili11 tary nuclear facilities in Russia.

12 (C) The reliability of controls and safety sys13 tems at civilian nuclear facilities in Russia.

14 (D) The reliability of command and control sys15 tems and procedures of the nuclear military forces

16 in Russia.

17 (3) Each report shall be submitted in unclassified

18 form, but may contain a classified annex.

19 (4) The committees referred to in paragraph (1) are

20 the following:

21 (A) The Select Committee on Intelligence, Com22 mittee on Armed Services, and Committee on For23 eign Relations of the Senate.

24 (B) The Permanent Select Committee on Intel25 ligence, Committee on National Security, and Com-
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1 mittee on International Relations of the House of

2 Representatives.

3 SEC. 309. QUADRENNIAL INTELLIGENCE REVIEW.

4 (a) SENSE OF CONGRESS.—It is the sense of Con5 gress that—

6 (1) the Director of Central Intelligence and the

7 Secretary of Defense should jointly complete, in

8 1999 and every 4 years thereafter, a comprehensive

9 review of United States intelligence programs and

10 activities;

11 (2) each review under paragraph (1) should—

12 (A) include assessments of intelligence pol13 icy, resources, manpower, organization, and re14 lated matters; and

15 (B) encompass the programs and activities

16 funded under the National Foreign Intelligence

17 Program (NFIP), the Joint Military Intel18 ligence Program (JMIP), and the Tactical In19 telligence and Related Activities (TIARA) ac20 counts;

21 (3) the results of each review should be shared

22 with the appropriate committees of Congress; and

23 (4) the Director, in conjunction with the Sec24 retary, should establish a nonpartisan, independent

25 panel (with members chosen in consultation with the
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1 committees referred to in subsection (b)(2) from in2 dividuals in the private sector) in order to—

3 (A) assess each review under paragraph

4 (1);

5 (B) conduct an assessment of alternative

6 intelligence structures to meet the anticipated

7 intelligence requirements for the national secu8 rity and foreign policy of the United States

9 through the year 2010; and

10 (C) make recommendations to the Director

11 and the Secretary regarding the optimal intel12 ligence structure for the United States in light

13 of the assessment under subparagraph (B).

14 (b) REPORT.—(1) Not later than August 15, 1998,

15 the Director and the Secretary shall jointly submit to the

16 committees referred to in paragraph (2) the views of the

17 Director and the Secretary regarding—

18 (A) the potential value of conducting reviews as

19 described in subsection (a)(1); and

20 (B) the potential value of assessments of such

21 reviews as described in subsection (a)(4)(A).

22 (2) The committees referred to in paragraph (1) are

23 the following:
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1 (A) The Select Committee on Intelligence, Com2 mittee on Armed Services, and Committee on Appro3 priations of the Senate.

4 (B) The Permanent Select Committee on Intel5 ligence, Committee on National Security, and Com6 mittee on Appropriations of the House of Represent7 atives.

8 SEC. 310. DESIGNATION OF HEADQUARTERS BUILDING OF

9 CENTRAL INTELLIGENCE AGENCY AS THE

10 GEORGE HERBERT WALKER BUSH CENTER

11 FOR CENTRAL INTELLIGENCE.

12 (a) DESIGNATION.—The Headquarters Building of

13 the Central Intelligence Agency located in Langley, Vir14 ginia, shall be known and designated as the ‘‘George Her15 bert Walker Bush Center for Central Intelligence’’.

16 (b) REFERENCES.—Any reference in a law, map, reg17 ulation, document, paper, or other record of the United

18 States to the Headquarters Building referred to in sub19 section (a) shall be deemed to be a reference to the George

20 Herbert Walker Bush Center for Central Intelligence.
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1 TITLE IV—CENTRAL

2 INTELLIGENCE AGENCY

3 SEC. 401. EXTENSION OF SEPARATION PAY PROGRAM FOR

4 VOLUNTARY SEPARATION OF CIA EMPLOY5 EES.

6 (a) EXTENSION.—Subsection (f) of section 2 of the

7 Central Intelligence Agency Voluntary Separation Pay Act

8 (50 U.S.C. 403–4 note) is amended by striking out ‘‘Sep9 tember 30, 1999’’ and inserting in lieu thereof ‘‘Septem10 ber 30, 2001’’.

11 (b) CONFORMING AMENDMENT.—Subsection (i) of

12 that section is amended by striking out ‘‘fiscal year 1998

13 or fiscal year 1999’’ and inserting in lieu thereof ‘‘fiscal

14 year 1998, 1999, 2000, or 2001’’

15 SEC. 402. ADDITIONAL DUTIES FOR INSPECTOR GENERAL

16 OF CENTRAL INTELLIGENCE AGENCY.

17 Section 17(c) of the Central Intelligence Agency Act

18 of 1949 (50 U.S.C. 403q(c)) is amended—

19 (1) by redesignating paragraphs (3) and (4) as

20 paragraphs (4) and (5), respectively; and

21 (2) by inserting after paragraph (2) the follow22 ing new paragraph (3):

23 ‘‘(3) to review existing and proposed legislation

24 relating to the programs and operations of the Agen25 cy and to make recommendations in the semiannual
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1 reports required by subsection (d) concerning the

2 impact of such legislation on economy and efficiency

3 in the administration of, or prevention and detection

4 of fraud and abuse in, the programs and operations

5 administered or financed by the Agency;’’.

6 TITLE V—DISCLOSURE OF

7 INFORMATION TO CONGRESS

8 SEC. 501. ENCOURAGEMENT OF DISCLOSURE OF CERTAIN

9 INFORMATION TO CONGRESS.

10 (a) ENCOURAGEMENT.—

11 (1) IN GENERAL.—Not later than 30 days after

12 the date of enactment of this Act, the President

13 shall take appropriate actions to inform the employ14 ees of the covered agencies, and employees of con15 tractors carrying out activities under classified con16 tracts with covered agencies, that—

17 (A) except as provided in paragraph (4),

18 the disclosure of information described in para19 graph (2) to the individuals referred to in para20 graph (3) is not prohibited by law, executive

21 order, or regulation or otherwise contrary to

22 public policy;

23 (B) the individuals referred to in para24 graph (3) are presumed to have a need to know
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1 and to be authorized to receive such informa2 tion; and

3 (C) the individuals referred to in para4 graph (3) may receive information so disclosed

5 only in their capacity as members of the com6 mittees concerned.

7 (2) COVERED INFORMATION.—Paragraph (1)

8 applies to information, including classified informa9 tion, that an employee reasonably believes to provide

10 direct and specific evidence of—

11 (A) a violation of any law, rule, or regula12 tion;

13 (B) a false statement to Congress on an

14 issue of material fact; or

15 (C) gross mismanagement, a gross waste

16 of funds, a flagrant abuse of authority, or a

17 substantial and specific danger to public health

18 or safety.

19 (3) COVERED INDIVIDUALS.—The individuals to

20 whom information described in paragraph (2) may

21 be disclosed are the members of a committee of Con22 gress having as its primary responsibility the over23 sight of a department, agency, or element of the

24 Federal Government to which such information re25 lates.
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1 (4) SCOPE.—Paragraph (1)(A) does not apply

2 to information otherwise described in paragraph (2)

3 if the disclosure of the information is prohibited by

4 Rule 6(e) of the Federal Rules of Criminal Proce5 dure.

6 (b) REPORT.—Not later than 60 days after the date

7 of enactment of this Act, the President shall submit to

8 Congress a report on the actions taken under subsection

9 (a).

10 (c) CONSTRUCTION WITH OTHER REPORTING RE11 QUIREMENTS.—Nothing in this section may be construed

12 to modify, alter, or otherwise affect any reporting require13 ment relating to intelligence activities that arises under

14 the National Security Act of 1947 (50 U.S.C. 401 et seq.)

15 or any other provision of law.

16 (d) COVERED AGENCIES DEFINED.—In this section,

17 the term ‘‘covered agencies’’ means the following:

18 (1) The Central Intelligence Agency.

19 (2) The Defense Intelligence Agency.

20 (3) The National Imagery and Mapping Agen21 cy.

22 (4) The National Security Agency.

23 (5) The Federal Bureau of Investigation.

24 (6) The National Reconnaissance Office.
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1 (7) Any other Executive agency, or element or

2 unit thereof, determined by the President under sec3 tion 2302(a)(2)(C)(ii) of title 5, United States Code,

4 to have as its principal function the conduct of for5 eign intelligence or counterintelligence activities.

6 TITLE VI—FOREIGN INTEL7 LIGENCE AND INTER8 NATIONAL TERRORISM IN9 VESTIGATIONS

10 SEC. 601. PEN REGISTERS AND TRAP AND TRACE DEVICES

11 IN FOREIGN INTELLIGENCE AND INTER12 NATIONAL TERRORISM INVESTIGATIONS.

13 The Foreign Intelligence Surveillance Act of 1978

14 (50 U.S.C. 1801 et seq.) is amended—

15 (1) by redesignating title IV as title VI and sec16 tion 401 as section 601, respectively; and

17 (2) by inserting after title III the following new

18 title:

19 ‘‘TITLE IV—PEN REGISTERS AND TRAP AND

20 TRACE DEVICES FOR FOREIGN INTEL21 LIGENCE PURPOSES

22 ‘‘DEFINITIONS

23 ‘‘SEC. 401. As used in this title:

24 ‘‘(1) The terms ‘foreign power’, ‘agent of a for25 eign power’, ‘international terrorism’, ‘foreign intel-
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1 ligence information’, ‘Attorney General’, ‘United

2 States person’, ‘United States’, ‘person’, and ‘State’

3 shall have the same meanings as in section 101 of

4 this Act.

5 ‘‘(2) The terms ‘pen register’ and ‘trap and

6 trace device’ have the meanings given such terms in

7 section 3127 of title 18, United States Code.

8 ‘‘(3) The term ‘aggrieved person’ means any

9 person—

10 ‘‘(A) whose telephone line was subject to

11 the installation or use of a pen register or trap

12 and trace device authorized by this title; or

13 ‘‘(B) whose communication instrument or

14 device was subject to the use of a pen register

15 or trap and trace device authorized by this title

16 to capture incoming electronic or other commu17 nications impulses.

18 ‘‘PEN REGISTERS AND TRAP AND TRACE DEVICES FOR

19 FOREIGN INTELLIGENCE AND INTERNATIONAL TER20 RORISM INVESTIGATIONS

21 ‘‘SEC. 402. (a) Notwithstanding any provision of title

22 I of this Act with respect to electronic surveillance under

23 that title as defined in section 101(f)(4) of this Act, the

24 Attorney General or a designated attorney for the Govern25 ment may make an application for an order or an exten26 sion of an order authorizing or approving the installation
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1 and use of a pen register or trap and trace device for any

2 investigation to gather foreign intelligence information or

3 information concerning international terrorism which is

4 being conducted by the Federal Bureau of Investigation

5 under such guidelines as the Attorney General approves

6 pursuant to Executive Order No. 12333, or a successor

7 order.

8 ‘‘(b) Each application under this section shall be in

9 writing under oath or affirmation to—

10 ‘‘(1) a judge of the court established by section

11 103(a) of this Act; or

12 ‘‘(2) a United States Magistrate Judge under

13 chapter 43 of title 28, United States Code, who is

14 publicly designated by the Chief Justice of the

15 United States to have the power to hear applications

16 for and grant orders approving the installation and

17 use of a pen register or trap or trace device on be18 half of a judge of that court.

19 ‘‘(c) Each application under this section shall require

20 the approval of the Attorney General, or a designated at21 torney for the Government, and shall include—

22 ‘‘(1) the identity of the Federal officer seeking

23 to use the pen register or trap and trace device cov24 ered by the application;
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1 ‘‘(2) a certification by the applicant that the in2 formation likely to be obtained is relevant to an on3 going foreign intelligence or international terrorism

4 investigation being conducted by the Federal Bureau

5 of Investigation under guidelines approved by the

6 Attorney General; and

7 ‘‘(3) information which demonstrates that there

8 is reason to believe that the telephone line to which

9 the pen register or trap and trace device is to be at10 tached, or the communication instrument or device

11 to be covered by the pen register or trap and trace

12 device, has been or is about to be used in commu13 nication with—

14 ‘‘(A) an individual who is engaging or has

15 engaged in international terrorism or clandes16 tine intelligence activities that involve or may

17 involve a violation of the criminal laws of the

18 United States; or

19 ‘‘(B) a foreign power or agent of a foreign

20 power under circumstances giving reason to be21 lieve that the communication concerns or con22 cerned international terrorism or clandestine in23 telligence activities that involve or may involve

24 a violation of the criminal laws of the United

25 States.
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1 ‘‘(d)(1) Upon an application made pursuant to this

2 section, the judge shall enter an ex parte order as re3 quested, or as modified, approving the installation and use

4 of a pen register or trap and trace device if the judge finds

5 that the application satisfies the requirements of this sec6 tion.

7 ‘‘(2) An order issued under this section—

8 ‘‘(A) shall specify—

9 ‘‘(i) the identity, if known, of the person

10 who is the subject of the foreign intelligence or

11 international terrorism investigation;

12 ‘‘(ii) in the case of an application for the

13 installation and use of a pen register or trap

14 and trace device with respect to a telephone

15 line—

16 ‘‘(I) the identity, if known, of the per17 son to whom is leased or in whose name

18 the telephone line is listed; and

19 ‘‘(II) the number and, if known, phys20 ical location of the telephone line; and

21 ‘‘(iii) in the case of an application for the

22 use of a pen register or trap and trace device

23 with respect to a communication instrument or

24 device not covered by clause (ii)—
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1 ‘‘(I) the identity, if known, of the per2 son who owns or leases the instrument or

3 device or in whose name the instrument or

4 device is listed; and

5 ‘‘(II) the number of the instrument or

6 device; and

7 ‘‘(B) shall direct that—

8 ‘‘(i) upon request of the applicant, the pro9 vider of a wire or electronic communication

10 service, landlord, custodian, or other person

11 shall furnish any information, facilities, or tech12 nical assistance necessary to accomplish the in13 stallation and operation of the pen register or

14 trap and trace device in such a manner as will

15 protect its secrecy and produce a minimum

16 amount of interference with the services that

17 such provider, landlord, custodian, or other per18 son is providing the person concerned;

19 ‘‘(ii) such provider, landlord, custodian, or

20 other person—

21 ‘‘(I) shall not disclose the existence of

22 the investigation or of the pen register or

23 trap and trace device to any person unless

24 or until ordered by the court; and
27

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1 ‘‘(II) shall maintain, under security

2 procedures approved by the Attorney Gen3 eral and the Director of Central Intel4 ligence pursuant to section 105(b)(2)(C) of

5 this Act, any records concerning the pen

6 register or trap and trace device or the aid

7 furnished; and

8 ‘‘(iii) the applicant shall compensate such

9 provider, landlord, custodian, or other person

10 for reasonable expenses incurred by such pro11 vider, landlord, custodian, or other person in

12 providing such information, facilities, or tech13 nical assistance.

14 ‘‘(e) An order issued under this section shall author15 ize the installation and use of a pen register or trap and

16 trace device for a period not to exceed 90 days. Extensions

17 of such an order may be granted, but only upon an appli18 cation for an order under this section and upon the judi19 cial finding required by subsection (d). The period of ex20 tension shall be for a period not to exceed 90 days.

21 ‘‘(f) No cause of action shall lie in any court against

22 any provider of a wire or electronic communication service,

23 landlord, custodian, or other person (including any officer,

24 employee, agent, or other specified person thereof) that

25 furnishes any information, facilities, or technical assist-
28

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1 ance under subsection (d) in accordance with the terms

2 of a court under this section.

3 ‘‘(g) Unless otherwise ordered by the judge, the re4 sults of a pen register or trap and trace device shall be

5 furnished at reasonable intervals during regular business

6 hours for the duration of the order to the authorized Gov7 ernment official or officials.

8 ‘‘AUTHORIZATION DURING EMERGENCIES

9 ‘‘SEC. 403. (a) Notwithstanding any other provision

10 of this title, when the Attorney General makes a deter11 mination described in subsection (b), the Attorney General

12 may authorize the installation and use of a pen register

13 or trap and trace device on an emergency basis to gather

14 foreign intelligence information or information concerning

15 international terrorism if—

16 ‘‘(1) a judge referred to in section 402(b) of

17 this Act is informed by the Attorney General or his

18 designee at the time of such authorization that the

19 decision has been made to install and use the pen

20 register or trap and trace device, as the case may be,

21 on an emergency basis; and

22 ‘‘(2) an application in accordance with section

23 402 of this Act is made to such judge as soon as

24 practicable, but not more than 48 hours, after the

25 Attorney General authorizes the installation and use
29

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1 of the pen register or trap and trace device, as the

2 case may be, under this section.

3 ‘‘(b) A determination under this subsection is a rea4 sonable determination by the Attorney General that—

5 ‘‘(1) an emergency requires the installation and

6 use of a pen register or trap and trace device to ob7 tain foreign intelligence information or information

8 concerning international terrorism before an order

9 authorizing the installation and use of the pen reg10 ister or trap and trace device, as the case may be,

11 can with due diligence be obtained under section 402

12 of this Act; and

13 ‘‘(2) the factual basis for issuance of an order

14 under such section 402 to approve the installation

15 and use of the pen register or trap and trace device,

16 as the case may be, exists.

17 ‘‘(c)(1) In the absence of an order applied for under

18 subsection (a)(2) approving the installation and use of a

19 pen register or trap and trace device authorized under this

20 section, the installation and use of the pen register or trap

21 and trace device, as the case may be, shall terminate at

22 the earlier of—

23 ‘‘(A) when the information sought is obtained;

24 ‘‘(B) when the application for the order is de25 nied under section 402 of this Act; or
30

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1 ‘‘(C) 48 hours after the time of the authoriza2 tion by the Attorney General.

3 ‘‘(2) In the event that an application for an order

4 applied for under subsection (a)(2) is denied, or in any

5 other case where the installation and use of a pen register

6 or trap and trace device under this section is terminated

7 and no order under section 402 of this Act is issued ap8 proving the installation and use of the pen register or trap

9 and trace device, as the case may be, no information ob10 tained or evidence derived from the use of the pen register

11 or trap and trace device, as the case may be, shall be re12 ceived in evidence or otherwise disclosed in any trial, hear13 ing, or other proceeding in or before any court, grand jury,

14 department, office, agency, regulatory body, legislative

15 committee, or other authority of the United States, a

16 State, or political subdivision thereof, and no information

17 concerning any United States person acquired from the

18 use of the pen register or trap and trace device, as the

19 case may be, shall subsequently be used or disclosed in

20 any other manner by Federal officers or employees with21 out the consent of such person, except with the approval

22 of the Attorney General if the information indicates a

23 threat of death or serious bodily harm to any person.

24 ‘‘AUTHORIZATION DURING TIME OF WAR

25 ‘‘SEC. 404. Notwithstanding any other provision of

26 law, the President, through the Attorney General, may au-
31

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1 thorize the use of a pen register or trap and trace device

2 without a court order under this title to acquire foreign

3 intelligence information for a period not to exceed 15 cal4 endar days following a declaration of war by Congress.

5 ‘‘USE OF INFORMATION

6 ‘‘SEC. 405. (a)(1) Information acquired from the use

7 of a pen register or trap and trace device installed pursu8 ant to this title concerning any United States person may

9 be used and disclosed by Federal officers and employees

10 without the consent of the United States person only in

11 accordance with the provisions of this section.

12 ‘‘(2) No information acquired from a pen register or

13 trap and trace device installed and used pursuant to this

14 title may be used or disclosed by Federal officers or em15 ployees except for lawful purposes.

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

17 shall be disclosed for law enforcement purposes unless

18 such disclosure is accompanied by a statement that such

19 information, or any information derived therefrom, may

20 only be used in a criminal proceeding with the advance

21 authorization of the Attorney General.

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

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

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

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

26 United States against an aggrieved person any informa-
32

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1 tion obtained or derived from the use of a pen register

2 or trap and trace device pursuant to this title, the United

3 States shall, before the trial, hearing, or the other proceed4 ing or at a reasonable time before an effort to so disclose

5 or so use that information or submit it in evidence, notify

6 the aggrieved person and the court or other authority in

7 which the information is to be disclosed or used that the

8 United States intends to so disclose or so use such infor9 mation.

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

11 thereof intends to enter into evidence or otherwise use or

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

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

14 body, or other authority of the State or political subdivi15 sion thereof against an aggrieved person any information

16 obtained or derived from the use of a pen register or trap

17 and trace device pursuant to this title, the State or politi18 cal subdivision thereof shall notify the aggrieved person,

19 the court or other authority in which the information is

20 to be disclosed or used, and the Attorney General that the

21 State or political subdivision thereof intends to so disclose

22 or so use such information.

23 ‘‘(e)(1) Any aggrieved person against whom evidence

24 obtained or derived from the use of a pen register or trap

25 and trace device is to be, or has been, introduced or other-
33

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1 wise used or disclosed in any trial, hearing, or other pro2 ceeding in or before any court, department, officer, agen3 cy, regulatory body, or other authority of the United

4 States, or a State or political subdivision thereof, may

5 move to suppress the evidence obtained or derived from

6 the use of the pen register or trap and trace device, as

7 the case may be, on the grounds that—

8 ‘‘(A) the information was unlawfully acquired;

9 or

10 ‘‘(B) the use of the pen register or trap and

11 trace device, as the case may be, was not made in

12 conformity with an order of authorization or ap13 proval under this title.

14 ‘‘(2) A motion under paragraph (1) shall be made be15 fore the trial, hearing, or other proceeding unless there

16 was no opportunity to make such a motion or the ag17 grieved person concerned was not aware of the grounds

18 of the motion.

19 ‘‘(f)(1) Whenever a court or other authority is noti20 fied pursuant to subsection (c) or (d), whenever a motion

21 is made pursuant to subsection (e), or whenever any mo22 tion or request is made by an aggrieved person pursuant

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

24 State before any court or other authority of the United

25 States or any State to discover or obtain applications or
34

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1 orders or other materials relating to the use of a pen reg2 ister or trap and trace device authorized by this title or

3 to discover, obtain, or suppress evidence or information

4 obtained or derived from the use of a pen register or trap

5 and trace device authorized by this title, the United States

6 district court or, where the motion is made before another

7 authority, the United States district court in the same dis8 trict as the authority shall, notwithstanding any other pro9 vision of law and if the Attorney General files an affidavit

10 under oath that disclosure or any adversary hearing would

11 harm the national security of the United States, review

12 in camera and ex parte the application, order, and such

13 other materials relating to the use of the pen register or

14 trap and trace device, as the case may be, as may be nec15 essary to determine whether the use of the pen register

16 or trap and trace device, as the case may be, was lawfully

17 authorized and conducted.

18 ‘‘(2) In making a determination under paragraph (1),

19 the court may disclose to the aggrieved person, under ap20 propriate security procedures and protective orders, por21 tions of the application, order, or other materials relating

22 to the use of the pen register or trap and trace device,

23 as the case may be, or may require the Attorney General

24 to provide to the aggrieved person a summary of such ma25 terials, only where such disclosure is necessary to make
35

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1 an accurate determination of the legality of the use of the

2 pen register or trap and trace device, as the case may be.

3 ‘‘(g)(1) If the United States district court determines

4 pursuant to subsection (f) that the use of a pen register

5 or trap and trace device was not lawfully authorized or

6 conducted, the court may, in accordance with the require7 ments of law, suppress the evidence which was unlawfully

8 obtained or derived from the use of the pen register or

9 trap and trace device, as the case may be, or otherwise

10 grant the motion of the aggrieved person.

11 ‘‘(2) If the court determines that the use of the pen

12 register or trap and trace device, as the case may be, was

13 lawfully authorized or conducted, it may deny the motion

14 of the aggrieved person except to the extent that due proc15 ess requires discovery or disclosure.

16 ‘‘(h) Orders granting motions or requests under sub17 section (g), decisions under this section that the use of

18 a pen register or trap and trace device was not lawfully

19 authorized or conducted, and orders of the United States

20 district court requiring review or granting disclosure of

21 applications, orders, or other materials relating to the in22 stallation and use of a pen register or trap and trace de23 vice shall be final orders and binding upon all courts of

24 the United States and the several States except a United

25 States Court of Appeals or the Supreme Court.
36

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1 ‘‘CONGRESSIONAL OVERSIGHT

2 ‘‘SEC. 406. (a) On a semiannual basis, the Attorney

3 General shall fully inform the Permanent Select Commit4 tee on Intelligence of the House of Representatives and

5 the Select Committee on Intelligence of the Senate con6 cerning all uses of pen registers and trap and trace devices

7 pursuant to this title.

8 ‘‘(b) On a semiannual basis, the Attorney General

9 shall also provide to the committees referred to in sub10 section (a) and to the Committees on the Judiciary of the

11 House of Representatives and the Senate a report setting

12 forth with respect to the preceding six-month period—

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

14 orders approving the use of pen registers or trap

15 and trace devices under this title; and

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

17 granted, modified, or denied.’’.

18 SEC. 602. ACCESS TO CERTAIN BUSINESS RECORDS FOR

19 FOREIGN INTELLIGENCE AND INTER20 NATIONAL TERRORISM INVESTIGATIONS.

21 The Foreign Intelligence Surveillance Act of 1978

22 (50 U.S.C. 1801 et seq.), as amended by section 601 of

23 this Act, is further amended by inserting after title IV,

24 as added by such section 601, the following new title:
37

S 2052 PCS

1 ‘‘TITLE V—ACCESS TO CERTAIN BUSINESS

2 RECORDS FOR FOREIGN INTELLIGENCE

3 PURPOSES

4 ‘‘DEFINITIONS

5 ‘‘SEC. 501. As used in this title:

6 ‘‘(1) The terms ‘foreign power’, ‘agent of a for7 eign power’, ‘foreign intelligence information’, ‘inter8 national terrorism’, and ‘Attorney General’ shall

9 have the same meanings as in section 101 of this

10 Act.

11 ‘‘(2) The term ‘common carrier’ means any per12 son or entity transporting people or property by

13 land, rail, water, or air for compensation.

14 ‘‘(3) The term ‘physical storage facility’ means

15 any business or entity that provides space for the

16 storage of goods or materials, or services related to

17 the storage of goods or materials, to the public or

18 any segment thereof.

19 ‘‘(4) The term ‘public accommodation facility’

20 means any inn, hotel, motel, or other establishment

21 that provides lodging to transient guests.

22 ‘‘(5) The term ‘vehicle rental facility’ means

23 any person or entity that provides vehicles for rent,

24 lease, loan, or other similar use to the public or any

25 segment thereof.
38

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1 ‘‘ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN

2 INTELLIGENCE AND INTERNATIONAL TERRORISM IN3 VESTIGATIONS

4 ‘‘SEC. 502. (a) The Director of the Federal Bureau

5 of Investigation or a designee of the Director (whose rank

6 shall be no lower than Assistant Special Agent in Charge)

7 may make an application for an order authorizing a com8 mon carrier, public accommodation facility, physical stor9 age facility, or vehicle rental facility to release records in

10 its possession for an investigation to gather foreign intel11 ligence information or an investigation concerning inter12 national terrorism which investigation is being conducted

13 by the Federal Bureau of Investigation under such guide14 lines as the Attorney General approves pursuant to Execu15 tive Order No. 12333, or a successor order.

16 ‘‘(b) Each application under this section—

17 ‘‘(1) shall be made to—

18 ‘‘(A) a judge of the court established by

19 section 103(a) of this Act; or

20 ‘‘(B) a United States Magistrate Judge

21 under chapter 43 of title 28, United States

22 Code, who is publicly designated by the Chief

23 Justice of the United States to have the power

24 to hear applications and grant orders for the
39

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1 release of records under this section on behalf

2 of a judge of that court; and

3 ‘‘(2) shall specify that—

4 ‘‘(A) the records concerned are sought for

5 an investigation described in subsection (a); and

6 ‘‘(B) there are specific and articulable

7 facts giving reason to believe that the person to

8 whom the records pertain is a foreign power or

9 an agent of a foreign power.

10 ‘‘(c)(1) Upon application made pursuant to this sec11 tion, the judge shall enter an ex parte order as requested,

12 or as modified, approving the release of records if the

13 judge finds that the application satisfies the requirements

14 of this section.

15 ‘‘(2) An order under this subsection shall not disclose

16 that it is issued for purposes of an investigation described

17 in subsection (a).

18 ‘‘(d)(1) Any common carrier, public accommodation

19 facility, physical storage facility, or vehicle rental facility

20 shall comply with an order under subsection (c).

21 ‘‘(2) No common carrier, public accommodation facil22 ity, physical storage facility, or vehicle rental facility, or

23 officer, employee, or agent thereof, shall disclose to any

24 person (other than those officers, agents, or employees of

25 such common carrier, public accommodation facility, phys-
40

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1 ical storage facility, or vehicle rental facility necessary to

2 fulfill the requirement to disclose information to the Fed3 eral Bureau of Investigation under this section) that the

4 Federal Bureau of Investigation has sought or obtained

5 records pursuant to an order under this section.

6 ‘‘CONGRESSIONAL OVERSIGHT

7 ‘‘SEC. 503. (a) On a semiannual basis, the Attorney

8 General shall fully inform the Permanent Select Commit9 tee on Intelligence of the House of Representatives and

10 the Select Committee on Intelligence of the Senate con11 cerning all requests for records under this title.

12 ‘‘(b) On a semiannual basis, the Attorney General

13 shall provide to the Committees on the Judiciary of the

14 House of Representatives and the Senate a report setting

15 forth with respect to the preceding six-month period—

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

17 orders approving requests for records under this

18 title; and

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

20 granted, modified, or denied.’’.

21 SEC. 603. CONFORMING AND CLERICAL AMENDMENTS.

22 (a) CONFORMING AMENDMENT.—Section 601 of the

23 Foreign Intelligence Surveillance Act of 1978, as redesig24 nated by section 601(1) of this Act, is amended by striking

25 out ‘‘other than title III’’ and inserting in lieu thereof

26 ‘‘other than titles III, IV, and V’’.
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1 (b) CLERICAL AMENDMENT.—The table of contents

2 at the beginning of the Foreign Intelligence Surveillance

3 Act of 1978 is amended by striking out the items relating

4 to title IV and section 401 and inserting in lieu thereof

5 the following:

‘‘TITLE IV—PEN REGISTERS AND TRAP AND TRACE DEVICES

FOR FOREIGN INTELLIGENCE PURPOSES

‘‘401. Definitions.

‘‘402. Pen registers and trap and trace devices for foreign intelligence and international terrorism investigations.

‘‘403. Authorization during emergencies.

‘‘404. Authorization during time of war.

‘‘405. Use of information.

‘‘406. Congressional oversight.

‘‘TITLE V—ACCESS TO CERTAIN BUSINESS RECORDS FOR

FOREIGN INTELLIGENCE PURPOSES

‘‘501. Definitions.

‘‘502. Access to certain business records for foreign intelligence and international terrorism investigations.

‘‘503. Congressional oversight.

‘‘TITLE VI—EFFECTIVE DATE

‘‘601. Effective date.’’.
Calendar No. 442

105TH CONGRESS

2D SESSION S. 2052

[Report No. 105–185]

A BILL

To authorize appropriations for fiscal year 1999 for

for other purposes.ligence Retirement and Disability System, andManagement Account, and the Central Intelthe United States Government, the Communityintelligence and intelligence-related activities of

JUNE 26, 1998

Committee on Armed Services discharged; considered,

on the calendaramended, and read the third time; ordered to be placed