II

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

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.

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

2 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.

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.

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.

3 TITLE I—INTELLIGENCE

4 ACTIVITIES

5 SEC. 101. AUTHORIZATION OF APPROPRIATIONS.

6 Funds are hereby authorized to be appropriated for

7 fiscal year 1999 for the conduct of the intelligence and
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1 intelligence-related activities of the following elements of

2 the United States Government:

3 (1) The Central Intelligence Agency.

4 (2) The Department of Defense.

5 (3) The Defense Intelligence Agency.

6 (4) The National Security Agency.

7 (5) The Department of the Army, the Depart8 ment of the Navy, and the Department of the Air

9 Force.

10 (6) The Department of State.

11 (7) The Department of the Treasury.

12 (8) The Department of Energy.

13 (9) The Federal Bureau of Investigation.

14 (10) The National Reconnaissance Office.

15 (11) The National Imagery and Mapping Agen16 cy.

17 SEC. 102. CLASSIFIED SCHEDULE OF AUTHORIZATIONS.

18 (a) SPECIFICATIONS OF AMOUNTS AND PERSONNEL

19 CEILINGS.—The amounts authorized to be appropriated

20 under section 101, and the authorized personnel ceilings

21 as of September 30, 1999, for the conduct of the intel22 ligence and intelligence-related activities of the elements

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

24 Schedule of Authorizations prepared to accompany the
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1 conference report on the bill ll of the One Hundred

2 Fifth Congress.

3 (b) AVAILABILITY OF CLASSIFIED SCHEDULE OF AU4 THORIZATIONS.—The Schedule of Authorizations shall be

5 made available to the Committees on Appropriations of

6 the Senate and House of Representatives and to the Presi7 dent. The President shall provide for suitable distribution

8 of the Schedule, or of appropriate portions of the Sched9 ule, within the Executive Branch.

10 SEC. 103. PERSONNEL CEILING ADJUSTMENTS.

11 (a) AUTHORITY FOR ADJUSTMENTS.—With the ap12 proval of the Director of the Office of Management and

13 Budget, the Director of Central Intelligence may authorize

14 employment of civilian personnel in excess of the number

15 authorized for fiscal year 1999 under section 102 when

16 the Director of Central Intelligence determines that such

17 action is necessary to the performance of important intel18 ligence functions, except that the number of personnel em19 ployed in excess of the number authorized under such sec20 tion may not, for any element of the intelligence commu21 nity, exceed two percent of the number of civilian person22 nel authorized under such section for such element.

23 (b) NOTICE TO INTELLIGENCE COMMITTEES.—The

24 Director of Central Intelligence shall promptly notify the

25 Permanent Select Committee on Intelligence of the House
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1 of Representatives and the Select Committee on Intel2 ligence of the Senate whenever the Director exercises the

3 authority granted by this section.

4 SEC. 104. COMMUNITY MANAGEMENT ACCOUNT.

5 (a) AUTHORIZATION OF APPROPRIATIONS.—

6 (1) AUTHORIZATION.—There is authorized to

7 be appropriated for the Community Management

8 Account of the Director of Central Intelligence for

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

10 (2) AVAILABILITY OF CERTAIN FUNDS.—Within

11 such amount, funds identified in the classified

12 Schedule of Authorizations referred to in section

13 102(a) for the Advanced Research and Development

14 Committee, the Advanced Technology Group, and

15 the Environmental Intelligence and Applications

16 Program shall remain available until September 30,

17 2000.

18 (b) AUTHORIZED PERSONNEL LEVELS.—The ele19 ments within the Community Management Account of the

20 Director of Central Intelligence are authorized a total of

21 283 full-time personnel as of September 30, 1999. Person22 nel serving in such elements may be permanent employees

23 of the Community Management Account element or per24 sonnel detailed from other elements of the United States

25 Government.
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1 (c) CLASSIFIED AUTHORIZATIONS.—

2 (1) AUTHORIZATION OF APPROPRIATIONS.—In

3 addition to amounts authorized to be appropriated

4 for the Community Management Account by sub5 section (a), there is also authorized to be appro6 priated for the Community Management Account for

7 fiscal year 1999 such additional amounts as are

8 specified in the classified Schedule of Authorizations

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

10 amounts shall remain available until September 30,

11 2000.

12 (2) AUTHORIZATION OF PERSONNEL.—In addi13 tion to the personnel authorized by subsection (b)

14 for elements of the Community Management Ac15 count as of September 30, 1999, there is hereby au16 thorized such additional personnel for such elements

17 as of that date as is specified in the classified Sched18 ule of Authorizations.

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

20 113 of the National Security Act of 1947 (50 U.S.C.

21 404h), during fiscal year 1999, any officer or employee

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

23 is detailed to the staff of an element within the Commu24 nity Management Account from another element of the

25 United States Government shall be detailed on a reimburs-
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1 able basis, except that any such officer, employee, or mem2 ber may be detailed on a nonreimbursable basis for a pe3 riod of less than one year for the performance of tem4 porary functions as required by the Director of Central

5 Intelligence.

6 (e) NATIONAL DRUG INTELLIGENCE CENTER.—

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

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

9 $27,000,000 shall be available for the National

10 Drug Intelligence Center. Within such amount,

11 funds provided for research, development, test, and

12 evaluation purposes shall remain available until Sep13 tember 30, 2000, and funds provided for procure14 ment purposes shall remain available until Septem15 ber 30, 2001.

16 (2) TRANSFER OF FUNDS.—The Director of

17 Central Intelligence shall transfer to the Attorney

18 General of the United States funds available for the

19 National Drug Intelligence Center under paragraph

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

21 transferred for the activities of the Center.

22 (3) LIMITATION.—Amounts available for the

23 Center may not be used in contravention of the pro24 visions of section 103(d)(1) of the National Security

25 Act of 1947 (50 U.S.C. 403–3(d)(1)).
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1 (4) AUTHORITY OVER CENTER.—Notwithstand2 ing any other provision of law, the Attorney General

3 shall retain full authority over the operations of the

4 Center.

5 TITLE II—CENTRAL INTEL6 LIGENCE AGENCY RETIRE7 MENT AND DISABILITY SYS8 TEM

9 SEC. 201. AUTHORIZATION OF APPROPRIATIONS.

10 There is authorized to be appropriated for the Cen11 tral Intelligence Agency Retirement and Disability Fund

12 for fiscal year 1999 the sum of $201,500,000.

13 TITLE III—GENERAL

14 PROVISIONS

15 SEC. 301. INCREASE IN EMPLOYEE COMPENSATION AND

16 BENEFITS AUTHORIZED BY LAW.

17 Appropriations authorized by this Act for salary, pay,

18 retirement, and other benefits for Federal employees may

19 be increased by such additional or supplemental amounts

20 as may be necessary for increases in such compensation

21 or benefits authorized by law.

22 SEC. 302. RESTRICTION ON CONDUCT OF INTELLIGENCE

23 ACTIVITIES.

24 The authorization of appropriations by this Act shall

25 not be deemed to constitute authority for the conduct of
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1 any intelligence activity which is not otherwise authorized

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

3 SEC. 303. EXTENSION OF APPLICATION OF SANCTIONS

4 LAWS TO INTELLIGENCE ACTIVITIES.

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

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

7 1999’’ and inserting in lieu thereof ‘‘January 6, 2000’’.

8 SEC. 304. EXTENSION OF AUTHORITY TO ENGAGE IN COM9 MERCIAL ACTIVITIES AS SECURITY FOR IN10 TELLIGENCE COLLECTION ACTIVITIES.

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

12 amended in the second sentence by striking out ‘‘Decem13 ber 31, 1998’’ and inserting in lieu thereof ‘‘December 31,

14 2000’’.

15 SEC. 305. MODIFICATION OF NATIONAL SECURITY EDU16 CATION PROGRAM.

17 (a) ASSISTANCE FOR COUNTERPROLIFERATION

18 STUDIES.—The David L. Boren National Security Edu19 cation Act of 1991 (50 U.S.C. 1901 et seq.) is amended

20 as follows:

21 (1) In section 801 (50 U.S.C. 1901), by insert22 ing ‘‘counterproliferation studies,’’ after ‘‘area stud23 ies,’’ each place it appears in subsections (b)(7) and

24 (c)(2).

25 (2) In section 802 (50 U.S.C. 1902)—
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1 (A) by inserting ‘‘counterproliferation

2 studies,’’ after ‘‘area studies,’’ each place it ap3 pears in paragraphs (1)(B)(i), (1)(C), and (4)

4 of subsection (a); and

5 (B) by inserting ‘‘counterproliferation

6 study,’’ after ‘‘area study,’’ each place it ap7 pears subparagraphs (A)(ii) and (B)(ii) of sub8 section (b)(2).

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

10 1903(b)(8)), by striking out ‘‘and area’’ and insert11 ing in lieu thereof ‘‘area, and counterproliferation’’.

12 (4) In section 806(b)(1) (50 U.S.C.

13 1906(b)(1)), by striking out ‘‘and area’’ and insert14 ing in lieu thereof ‘‘area, and counterproliferation’’.

15 (b) REVISION OF MEMBERSHIP OF NATIONAL SECU16 RITY EDUCATION BOARD.—Section 803(b) of that Act (50

17 U.S.C. 1903(b)) is further amended—

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

19 (2) by inserting in lieu thereof the following

20 new paragraph (6):

21 ‘‘(6) The Secretary of Energy.’’.

22 SEC. 306. TECHNICAL AMENDMENTS.

23 (a) CENTRAL INTELLIGENCE AGENCY ACT OF

24 1949.—(1) Section 5(a)(1) of the Central Intelligence

25 Agency Act of 1949 (50 U.S.C. 403f(a)(1)) is amended—
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1 (A) by striking out ‘‘subparagraphs (B) and (C)

2 of section 102(a)(2), subsections (c)(5)’’ and insert3 ing in lieu thereof ‘‘paragraphs (2) and (3) of sec4 tion 102(a), subsections (c)(6)’’; and

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

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

7 (2) Section 6 of that Act (50 U.S.C. 403g) is amend8 ed by striking out ‘‘section 103(c)(5) of the National Secu9 rity Act of 1947 (50 U.S.C. 403–3(c)(5))’’ and inserting

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

11 Act of 1947 (50 U.S.C. 403–3(c)(6))’’.

12 (b) CENTRAL INTELLIGENCE AGENCY RETIREMENT

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

14 Retirement Act (50 U.S.C. 2011(c)) is amended by strik15 ing out ‘‘section 103(c)(5) of the National Security Act

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

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

18 of 1947 (50 U.S.C. 403–3(c)(6))’’.

19 TITLE IV—CENTRAL

20 INTELLIGENCE AGENCY

21 SEC. 401. EXTENSION OF SEPARATION PAY PROGRAM FOR

22 VOLUNTARY SEPARATION OF CIA EMPLOY23 EES.

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

25 Central Intelligence Agency Voluntary Separation Pay Act
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1 (50 U.S.C. 403–4 note) is amended by striking out ‘‘Sep2 tember 30, 1999’’ and inserting in lieu thereof ‘‘Septem3 ber 30, 2001’’.

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

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

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

7 year 1998, 1999, 2000, or 2001’’

8 SEC. 402. ADDITIONAL DUTIES FOR INSPECTOR GENERAL

9 OF CENTRAL INTELLIGENCE AGENCY.

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

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

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

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

14 (2) by inserting after paragraph (2) the follow15 ing new paragraph (3):

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

17 relating to the programs and operations of the Agen18 cy and to make recommendations in the semiannual

19 reports required by subsection (d) concerning the

20 impact of such legislation on economy and efficiency

21 in the administration of, or prevention and detection

22 of fraud and abuse in, the programs and operations

23 administered or financed by the Agency;’’.
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1 TITLE V—DISCLOSURE OF

2 INFORMATION TO CONGRESS

3 SEC. 501. ENCOURAGEMENT OF DISCLOSURE OF CERTAIN

4 INFORMATION TO CONGRESS.

5 (a) ENCOURAGEMENT.—

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

7 the date of enactment of this Act, the President

8 shall take appropriate actions to inform the employ9 ees of the covered agencies, and employees of con10 tractors carrying out activities under classified con11 tracts with covered agencies, that—

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

13 the disclosure of information described in para14 graph (2) to the individuals referred to in para15 graph (3) is not prohibited by law, executive

16 order, or regulation or otherwise contrary to

17 public policy;

18 (B) the individuals referred to in para19 graph (3) are presumed to have a need to know

20 and to be authorized to receive such informa21 tion; and

22 (C) the individuals referred to in para23 graph (3) may receive information so disclosed

24 only in their capacity as members of the com25 mittees concerned.
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1 (2) COVERED INFORMATION.—Paragraph (1)

2 applies to information, including classified informa3 tion, that an employee reasonably believes to provide

4 direct and specific evidence of—

5 (A) a violation of any law, rule, or regula6 tion;

7 (B) a false statement to Congress on an

8 issue of material fact; or

9 (C) gross mismanagement, a gross waste

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

11 substantial and specific danger to public health

12 or safety.

13 (3) COVERED INDIVIDUALS.—The individuals to

14 whom information described in paragraph (2) may

15 be disclosed are the members of a committee of Con16 gress having as its primary responsibility the over17 sight of a department, agency, or element of the

18 Federal Government to which such information re19 lates.

20 (4) SCOPE.—Paragraph (1)(A) does not apply

21 to information otherwise described in paragraph (2)

22 if the disclosure of the information is prohibited by

23 Rule 6(e) of the Federal Rules of Criminal Proce24 dure.
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1 (b) REPORT.—Not later than 60 days after the date

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

3 Congress a report on the actions taken under subsection

4 (a).

5 (c) CONSTRUCTION WITH OTHER REPORTING RE6 QUIREMENTS.—Nothing in this section may be construed

7 to modify, alter, or otherwise affect any reporting require8 ment relating to intelligence activities that arises under

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

10 or any other provision of law.

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

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

13 (1) The Central Intelligence Agency.

14 (2) The Defense Intelligence Agency.

15 (3) The National Imagery and Mapping Agen16 cy.

17 (4) The National Security Agency.

18 (5) The Federal Bureau of Investigation.

19 (6) The National Reconnaissance Office.

20 (7) Any other Executive agency, or element or

21 unit thereof, determined by the President under sec22 tion 2302(a)(2)(C)(ii) of title 5, United States Code,

23 to have as its principal function the conduct of for24 eign intelligence or counterintelligence activities.
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1 TITLE VI—FOREIGN INTEL2 LIGENCE AND INTER3 NATIONAL TERRORISM IN4 VESTIGATIONS

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

6 IN FOREIGN INTELLIGENCE AND INTER7 NATIONAL TERRORISM INVESTIGATIONS.

8 The Foreign Intelligence Surveillance Act of 1978

9 (50 U.S.C. 1801 et seq.) is amended—

10 (1) by redesignating title IV as title VI and sec11 tion 401 as section 601, respectively; and

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

13 title:

14 ‘‘TITLE IV—PEN REGISTERS AND TRAP AND

15 TRACE DEVICES FOR FOREIGN INTEL16 LIGENCE PURPOSES

17 ‘‘DEFINITIONS

18 ‘‘SEC. 401. As used in this title:

19 ‘‘(1) The terms ‘foreign power’, ‘agent of a for20 eign power’, ‘international terrorism’, ‘foreign intel21 ligence information’, ‘Attorney General’, ‘United

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

23 shall have the same meanings as in section 101 of

24 this Act.
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1 ‘‘(2) The terms ‘pen register’ and ‘trap and

2 trace device’ have the meanings given such terms in

3 section 3127 of title 18, United States Code.

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

5 person—

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

7 the installation or use of a pen register or trap

8 and trace device authorized by this title; or

9 ‘‘(B) whose communication instrument or

10 device was subject to the use of a pen register

11 or trap and trace device authorized by this title

12 to capture incoming electronic or other commu13 nications impulses.

14 ‘‘PEN REGISTERS AND TRAP AND TRACE DEVICES FOR

15 FOREIGN INTELLIGENCE AND INTERNATIONAL TER16 RORISM INVESTIGATIONS

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

18 I of this Act with respect to electronic surveillance under

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

20 Attorney General or a designated attorney for the Govern21 ment may make an application for an order or an exten22 sion of an order authorizing or approving the installation

23 and use of a pen register or trap and trace device for any

24 investigation to gather foreign intelligence information or

25 information concerning international terrorism which is

26 being conducted by the Federal Bureau of Investigation
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1 under such guidelines as the Attorney General approves

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

3 order.

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

5 writing under oath or affirmation to—

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

7 103(a) of this Act; or

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

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

10 publicly designated by the Chief Justice of the

11 United States to have the power to hear applications

12 for and grant orders approving the installation and

13 use of a pen register or trap or trace device on be14 half of a judge of that court.

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

16 the approval of the Attorney General, or a designated at17 torney for the Government, and shall include—

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

19 to use the pen register or trap and trace device cov20 ered by the application;

21 ‘‘(2) a certification by the applicant that the in22 formation likely to be obtained is relevant to an on23 going foreign intelligence or international terrorism

24 investigation being conducted by the Federal Bureau
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1 of Investigation under guidelines approved by the

2 Attorney General; and

3 ‘‘(3) information which demonstrates that there

4 is reason to believe that the telephone line to which

5 the pen register or trap and trace device is to be at6 tached, or the communication instrument or device

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

8 device, has been or is about to be used in commu9 nication with—

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

11 engaged in international terrorism or clandes12 tine intelligence activities that involve or may

13 involve a violation of the criminal laws of the

14 United States; or

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

16 power under circumstances giving reason to be17 lieve that the communication concerns or con18 cerned international terrorism or clandestine in19 telligence activities that involve or may involve

20 a violation of the criminal laws of the United

21 States.

22 ‘‘(d)(1) Upon an application made pursuant to this

23 section, the judge shall enter an ex parte order as re24 quested, or as modified, approving the installation and use

25 of a pen register or trap and trace device if the judge finds
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1 that the application satisfies the requirements of this sec2 tion.

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

4 ‘‘(A) shall specify—

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

6 who is the subject of the foreign intelligence or

7 international terrorism investigation;

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

9 installation and use of a pen register or trap

10 and trace device with respect to a telephone

11 line—

12 ‘‘(I) the identity, if known, of the per13 son to whom is leased or in whose name

14 the telephone line is listed; and

15 ‘‘(II) the number and, if known, phys16 ical location of the telephone line; and

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

18 use of a pen register or trap and trace device

19 with respect to a communication instrument or

20 device not covered by clause (ii)—

21 ‘‘(I) the identity, if known, of the per22 son who owns or leases the instrument or

23 device or in whose name the instrument or

24 device is listed; and
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1 ‘‘(II) the number of the instrument or

2 device; and

3 ‘‘(B) shall direct that—

4 ‘‘(i) upon request of the applicant, the pro5 vider of a wire or electronic communication

6 service, landlord, custodian, or other person

7 shall furnish any information, facilities, or tech8 nical assistance necessary to accomplish the in9 stallation and operation of the pen register or

10 trap and trace device in such a manner as will

11 protect its secrecy and produce a minimum

12 amount of interference with the services that

13 such provider, landlord, custodian, or other per14 son is providing the person concerned;

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

16 other person—

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

18 the investigation or of the pen register or

19 trap and trace device to any person unless

20 or until ordered by the court; and

21 ‘‘(II) shall maintain, under security

22 procedures approved by the Attorney Gen23 eral and the Director of Central Intel24 ligence pursuant to section 105(b)(2)(C) of

25 this Act, any records concerning the pen
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1 register or trap and trace device or the aid

2 furnished; and

3 ‘‘(iii) the applicant shall compensate such

4 provider, landlord, custodian, or other person

5 for reasonable expenses incurred by such pro6 vider, landlord, custodian, or other person in

7 providing such information, facilities, or tech8 nical assistance.

9 ‘‘(e) An order issued under this section shall author10 ize the installation and use of a pen register or trap and

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

12 of such an order may be granted, but only upon an appli13 cation for an order under this section and upon the judi14 cial finding required by subsection (d). The period of ex15 tension shall be for a period not to exceed 90 days.

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

17 any provider of a wire or electronic communication service,

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

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

20 furnishes any information, facilities, or technical assist21 ance under subsection (d) in accordance with the terms

22 of a court under this section.

23 ‘‘(g) Unless otherwise ordered by the judge, the re24 sults of a pen register or trap and trace device shall be

25 furnished at reasonable intervals during regular business
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1 hours for the duration of the order to the authorized Gov2 ernment official or officials.

3 ‘‘AUTHORIZATION DURING EMERGENCIES

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

5 of this title, when the Attorney General makes a deter6 mination described in subsection (b), the Attorney General

7 may authorize the installation and use of a pen register

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

9 foreign intelligence information or information concerning

10 international terrorism if—

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

12 this Act is informed by the Attorney General or his

13 designee at the time of such authorization that the

14 decision has been made to install and use the pen

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

16 on an emergency basis; and

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

18 402 of this Act is made to such judge as soon as

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

20 Attorney General authorizes the installation and use

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

22 case may be, under this section.

23 ‘‘(b) A determination under this subsection is a rea24 sonable determination by the Attorney General that—

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

26 use of a pen register or trap and trace device to ob-
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1 tain foreign intelligence information or information

2 concerning international terrorism before an order

3 authorizing the installation and use of the pen reg4 ister or trap and trace device, as the case may be,

5 can with due diligence be obtained under section 402

6 of this Act; and

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

8 under such section 402 to approve the installation

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

10 as the case may be, exists.

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

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

13 pen register or trap and trace device authorized under this

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

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

16 the earlier of—

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

18 ‘‘(B) when the application for the order is de19 nied under section 402 of this Act; or

20 ‘‘(C) 48 hours after the time of the authoriza21 tion by the Attorney General.

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

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

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

25 or trap and trace device under this section is terminated
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1 and no order under section 402 of this Act is issued ap2 proving the installation and use of the pen register or trap

3 and trace device, as the case may be, no information ob4 tained or evidence derived from the use of the pen register

5 or trap and trace device, as the case may be, shall be re6 ceived in evidence or otherwise disclosed in any trial, hear7 ing, or other proceeding in or before any court, grand jury,

8 department, office, agency, regulatory body, legislative

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

10 State, or political subdivision thereof, and no information

11 concerning any United States person acquired from the

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

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

14 any other manner by Federal officers or employees with15 out the consent of such person, except with the approval

16 of the Attorney General if the information indicates a

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

18 ‘‘AUTHORIZATION DURING TIME OF WAR

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

20 law, the President, through the Attorney General, may au21 thorize the use of a pen register or trap and trace device

22 without a court order under this title to acquire foreign

23 intelligence information for a period not to exceed 15 cal24 endar days following a declaration of war by Congress.
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1 ‘‘USE OF INFORMATION

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

3 of a pen register or trap and trace device installed pursu4 ant to this title concerning any United States person may

5 be used and disclosed by Federal officers and employees

6 without the consent of the United States person only in

7 accordance with the provisions of this section.

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

9 trap and trace device installed and used pursuant to this

10 title may be used or disclosed by Federal officers or em11 ployees except for lawful purposes.

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

13 shall be disclosed for law enforcement purposes unless

14 such disclosure is accompanied by a statement that such

15 information, or any information derived therefrom, may

16 only be used in a criminal proceeding with the advance

17 authorization of the Attorney General.

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

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

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

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

22 United States against an aggrieved person any informa23 tion obtained or derived from the use of a pen register

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

25 States shall, before the trial, hearing, or the other proceed-
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1 ing or at a reasonable time before an effort to so disclose

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

3 the aggrieved person and the court or other authority in

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

5 United States intends to so disclose or so use such infor6 mation.

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

8 thereof intends to enter into evidence or otherwise use or

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

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

11 body, or other authority of the State or political subdivi12 sion thereof against an aggrieved person any information

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

14 and trace device pursuant to this title, the State or politi15 cal subdivision thereof shall notify the aggrieved person,

16 the court or other authority in which the information is

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

18 State or political subdivision thereof intends to so disclose

19 or so use such information.

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

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

22 and trace device is to be, or has been, introduced or other23 wise used or disclosed in any trial, hearing, or other pro24 ceeding in or before any court, department, officer, agen25 cy, regulatory body, or other authority of the United
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1 States, or a State or political subdivision thereof, may

2 move to suppress the evidence obtained or derived from

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

4 the case may be, on the grounds that—

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

6 or

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

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

9 conformity with an order of authorization or ap10 proval under this title.

11 ‘‘(2) A motion under paragraph (1) shall be made be12 fore the trial, hearing, or other proceeding unless there

13 was no opportunity to make such a motion or the ag14 grieved person concerned was not aware of the grounds

15 of the motion.

16 ‘‘(f)(1) Whenever a court or other authority is noti17 fied pursuant to subsection (c) or (d), whenever a motion

18 is made pursuant to subsection (e), or whenever any mo19 tion or request is made by an aggrieved person pursuant

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

21 State before any court or other authority of the United

22 States or any State to discover or obtain applications or

23 orders or other materials relating to the use of a pen reg24 ister or trap and trace device authorized by this title or

25 to discover, obtain, or suppress evidence or information
29

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

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

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

4 authority, the United States district court in the same dis5 trict as the authority shall, notwithstanding any other pro6 vision of law and if the Attorney General files an affidavit

7 under oath that disclosure or any adversary hearing would

8 harm the national security of the United States, review

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

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

11 trap and trace device, as the case may be, as may be nec12 essary to determine whether the use of the pen register

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

14 authorized and conducted.

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

16 the court may disclose to the aggrieved person, under ap17 propriate security procedures and protective orders, por18 tions of the application, order, or other materials relating

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

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

21 to provide to the aggrieved person a summary of such ma22 terials, only where such disclosure is necessary to make

23 an accurate determination of the legality of the use of the

24 pen register or trap and trace device, as the case may be.
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1 ‘‘(g)(1) If the United States district court determines

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

3 or trap and trace device was not lawfully authorized or

4 conducted, the court may, in accordance with the require5 ments of law, suppress the evidence which was unlawfully

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

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

8 grant the motion of the aggrieved person.

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

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

11 lawfully authorized or conducted, it may deny the motion

12 of the aggrieved person except to the extent that due proc13 ess requires discovery or disclosure.

14 ‘‘(h) Orders granting motions or requests under sub15 section (g), decisions under this section that the use of

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

17 authorized or conducted, and orders of the United States

18 district court requiring review or granting disclosure of

19 applications, orders, or other materials relating to the in20 stallation and use of a pen register or trap and trace de21 vice shall be final orders and binding upon all courts of

22 the United States and the several States except a United

23 States Court of Appeals or the Supreme Court.

24 ‘‘CONGRESSIONAL OVERSIGHT

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

26 General shall fully inform the Permanent Select Commit-
31

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1 tee on Intelligence of the House of Representatives and

2 the Select Committee on Intelligence of the Senate con3 cerning all uses of pen registers and trap and trace devices

4 pursuant to this title.

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

6 shall also provide to the committees referred to in sub7 section (a) and to the Committees on the Judiciary of the

8 House of Representatives and the Senate a report setting

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

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

11 orders approving the use of pen registers or trap

12 and trace devices under this title; and

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

14 granted, modified, or denied.’’.

15 SEC. 602. ACCESS TO CERTAIN BUSINESS RECORDS FOR

16 FOREIGN INTELLIGENCE AND INTER17 NATIONAL TERRORISM INVESTIGATIONS.

18 The Foreign Intelligence Surveillance Act of 1978

19 (50 U.S.C. 1801 et seq.), as amended by section 601 of

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

21 as added by such section 601, the following new title:
32

•S 2052 RS

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.
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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
34

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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-
35

•S 2052 RS

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.’’.

Æ