II

106TH CONGRESS

2D SESSION S. 2089

To amend the Foreign Intelligence Surveillance Act of 1978 to modify procedures relating to orders for surveillance and searches for foreign intelligence purposes, and for other purposes.

IN THE SENATE OF THE UNITED STATES

FEBRUARY 24, 2000

Mr. SPECTER (for himself, Mr. TORRICELLI, Mr. THURMOND, Mr. BIDEN, Mr.

GRASSLEY, Mr. FEINGOLD, Mr. HELMS, Mr. SCHUMER, and Mr. SESSIONS) introduced the following bill; which was read twice and referred

to the Committee on the Judiciary

A BILL

To amend the Foreign Intelligence Surveillance Act of 1978

to modify procedures relating to orders for surveillance

and searches for foreign intelligence purposes, and for

other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Counterintelligence Re5 form Act of 2000’’.
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1 SEC. 2. CIRCUMSTANCES ESTABLISHING PROBABLE CAUSE

2 FOR ISSUANCE OF ORDERS FOR ELECTRONIC

3 SURVEILLANCE UNDER FOREIGN INTEL4 LIGENCE SURVEILLANCE ACT OF 1978.

5 (a) PAST ACTIVITIES.—Section 105 of the Foreign

6 Intelligence Surveillance Act of 1978 (50 U.S.C. 1805) is

7 amended—

8 (1) by redesignating subsections (b), (c), (d),

9 (e), (f), and (g) as subsections (c), (d), (e), (f), (g),

10 and (h), respectively; and

11 (2) by inserting after subsection (a) the fol12 lowing new subsection (b):

13 ‘‘(b) In determining whether or not probable cause

14 exists for purposes of an order under subsection (a)(3),

15 a judge may consider past activities of the target, as well

16 as facts and circumstances relating to current or future

17 activities of the target.’’.

18 (b) CONFORMING AMENDMENT.—Subsection (d) of

19 that section, as redesignated by subsection (a)(1) of this

20 section, is amended by striking ‘‘subsection (b)(1)’’ and

21 inserting ‘‘subsection (c)(1)’’.

22 SEC. 3. ORDERS FOR ELECTRONIC SURVEILLANCE UNDER

23 FOREIGN INTELLIGENCE SURVEILLANCE ACT

24 OF 1978.

25 (a) DESCRIPTION OF INTELLIGENCE OR LAW-EN26 FORCEMENT ACTIVITIES OF CERTAIN TARGETS.—Section
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1 104 of the Foreign Intelligence Surveillance Act of 1978

2 (50 U.S.C. 1804) is amended—

3 (1) in subsection (a)—

4 (A) by redesignating paragraphs (8), (9),

5 (10), and (11) as paragraphs (9), (10), (11),

6 and (12), respectively; and

7 (B) by inserting after paragraph (7) the

8 following new paragraph (8):

9 ‘‘(8) in the case of an application covering a

10 target described in section 101(b)(2), a detailed de11 scription of—

12 ‘‘(A) any current relationship between the

13 target and any Federal intelligence, intelligence14 related, or law enforcement activity; and

15 ‘‘(B) any prior relationship between the

16 target and any Federal intelligence, intelligence17 related, or law enforcement activity that is rel18 evant to a determination of probable cause

19 under section 105;’’; and

20 (2) in subsection (b), by striking ‘‘(8), and

21 (11)’’ and inserting ‘‘(9), and (12)’’.

22 (b) ADDITIONAL REQUIREMENTS REGARDING CER23 TAIN APPLICATIONS.—That section is further amended by

24 adding at the end the following new subsection:
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1 ‘‘(e)(1)(A) Upon written request of the Director of

2 the Federal Bureau of Investigation, the Secretary of De3 fense, the Secretary of State, or the Director of Central

4 Intelligence, the Attorney General shall personally review

5 under subsection (a) an application under that subsection

6 for a target described in section 101(b)(2).

7 ‘‘(B) An official referred to in subparagraph (A) may

8 not delegate the authority to make a request referred to

9 in that subparagraph.

10 ‘‘(2)(A) If as a result of a request under paragraph

11 (1) the Attorney General determines not to approve an

12 application under the second sentence of subsection (a) for

13 purposes of making the application under this section, the

14 Attorney General shall provide written notice of the deter15 mination to the official making the request for the review

16 of the application under that paragraph. The Attorney

17 General may not delegate the responsibility set forth in

18 the preceding sentence.

19 ‘‘(B) Notice with respect to an application under sub20 paragraph (A) shall set forth the modifications, if any, of

21 the application that are necessary in order for the Attor22 ney General to approve the application under the second

23 sentence of subsection (a) for purposes of making the ap24 plication under this section.
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1 ‘‘(C) Upon review of any modifications of an applica2 tion set forth under subparagraph (B), the official notified

3 of the modifications under this paragraph shall modify the

4 application if such official determines that such modifica5 tion is warranted. Such official shall supervise the making

6 of any modification under this subparagraph. Such official

7 may not delegate the responsibility set forth in the pre8 ceding sentence.’’.

9 SEC. 4. ORDERS FOR PHYSICAL SEARCHES UNDER FOR10 EIGN INTELLIGENCE SURVEILLANCE ACT OF

11 1978.

12 (a) DESCRIPTION OF INTELLIGENCE OR LAW-EN13 FORCEMENT ACTIVITIES OF CERTAIN TARGETS.—Sub14 section (a) of section 303 of the Foreign Intelligence Sur15 veillance Act of 1978 (50 U.S.C. 1823) is amended—

16 (1) by redesignating paragraphs (8) and (9) as

17 paragraphs (9) and (10), respectively; and

18 (2) by inserting after paragraph (7) the fol19 lowing new paragraph (8):

20 ‘‘(8) in the case of an application covering a

21 target described in section 101(b)(2), a detailed de22 scription of—

23 ‘‘(A) any current relationship between the

24 target and any Federal intelligence, intelligence25 related, or law enforcement activity; and
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1 ‘‘(B) any prior relationship between the

2 target and any Federal intelligence, intelligence3 related, or law enforcement activity that is rel4 evant to a determination of probable cause

5 under section 304;’’.

6 (b) ADDITIONAL REQUIREMENTS REGARDING CER7 TAIN APPLICATIONS.—That section is further amended by

8 adding at the end the following new subsection:

9 ‘‘(d)(1)(A) Upon written request of the Director of

10 the Federal Bureau of Investigation, the Secretary of De11 fense, the Secretary of State, or the Director of Central

12 Intelligence, the Attorney General shall personally review

13 under subsection (a) an application under that subsection

14 for a target described in section 101(b)(2).

15 ‘‘(B) An official referred to in subparagraph (A) may

16 not delegate the authority to make a request referred to

17 in that subparagraph.

18 ‘‘(2)(A) If as a result of a request under paragraph

19 (1) the Attorney General determines not to approve an

20 application under the second sentence of subsection (a) for

21 purposes of making the application under this section, the

22 Attorney General shall provide written notice of the deter23 mination to the official making the request for the review

24 of the application under that paragraph. The Attorney
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1 General may not delegate the responsibility set forth in

2 the preceding sentence.

3 ‘‘(B) Notice with respect to an application under sub4 paragraph (A) shall set forth the modifications, if any, of

5 the application that are necessary in order for the Attor6 ney General to approve the application under the second

7 sentence of subsection (a) for purposes of making the ap8 plication under this section.

9 ‘‘(C) Upon review of any modifications of an applica10 tion set forth under subparagraph (B), the official notified

11 of the modifications under this paragraph shall modify the

12 application if such official determines that such modifica13 tion is warranted. Such official shall supervise the making

14 of any modification under this subparagraph. Such official

15 may not delegate the responsibility set forth in the pre16 ceding sentence.’’.

17 SEC. 5. DISCLOSURE FOR LAW ENFORCEMENT PURPOSES

18 OF INFORMATION ACQUIRED UNDER FOR19 EIGN INTELLIGENCE SURVEILLANCE ACT OF

20 1978.

21 (a) REGULATIONS RELATING TO DISCLOSURE.—Not

22 later than 180 days after the date of the enactment of

23 this Act, the Attorney General shall prescribe in regula24 tions the following:
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1 (1) The circumstances under which information

2 acquired pursuant to title I of the Foreign Intel3 ligence Surveillance Act of 1978 (50 U.S.C. 1801 et

4 seq.) shall be disclosed for law enforcement purposes

5 under section 106(b) of that Act (50 U.S.C.

6 1806(b)).

7 (2) The circumstances under which information

8 acquired pursuant to title III of the Foreign Intel9 ligence Surveillance Act of 1978 (50 U.S.C. 1821 et

10 seq.) shall be disclosed for law enforcement purposes

11 under section 305(c) of that Act (50 U.S.C.

12 1825(c)).

13 (3) The circumstances under which information

14 acquired pursuant to title IV of the Foreign Intel15 ligence Surveillance Act of 1978 (50 U.S.C. 1841 et

16 seq.) shall be disclosed for law enforcement purposes

17 under section 405(b) of that Act (50 U.S.C.

18 1845(b)).

19 (b) SUBMITTAL TO CONGRESS.—The Attorney Gen20 eral shall submit to the Committees on the Judiciary of

21 the Senate and House of Representatives the regulations

22 prescribed by the Attorney General under subsection (a).
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1 SEC. 6. COORDINATION OF COUNTERINTELLIGENCE WITH

2 THE FEDERAL BUREAU OF INVESTIGATION.

3 (a) TREATMENT OF CERTAIN SUBJECTS OF INVES4 TIGATION.—Subsection (c) of section 811 of the Intel5 ligence Authorization Act for Fiscal Year 1995 (50 U.S.C.

6 402a) is amended—

7 (1) in paragraphs (1) and (2), by striking

8 ‘‘paragraph (3)’’ and inserting ‘‘paragraph (5)’’;

9 (2) by redesignating paragraphs (3), (4), (5),

10 and (6) as paragraphs (5), (6), (7), and (9), respec11 tively;

12 (3) by inserting after paragraph (2) the fol13 lowing new paragraph (3):

14 ‘‘(3)(A) The Director of the Federal Bureau of Inves15 tigation shall notify in writing the head of the department

16 or agency concerned of a finding by the Federal Bureau

17 of Investigation that the subject of an investigation under

18 paragraph (1) should be left in place for investigative pur19 poses.

20 ‘‘(B) Not later than 30 days after receiving written

21 notification under subparagraph (A), the head of the de22 partment or agency so notified shall submit to the Direc23 tor a plan to minimize the unauthorized disclosure of clas24 sified information by the subject concerned.

25 ‘‘(C) A plan under this paragraph may be modified

26 if the Director and the head of the department or agency
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1 concerned jointly determine that the modification is war2 ranted. A modification under this subparagraph may in3 clude a decision that the subject of an investigation no

4 longer be left in place for investigative purposes.

5 ‘‘(D) A disagreement regarding an element of a plan

6 under subparagraph (A), including a proposed modifica7 tion of the plan under subparagraph (C), shall be resolved

8 by the Board.’’; and

9 (4) in paragraph (5), as so redesignated, by

10 striking ‘‘paragraph (1) or (2)’’ and inserting ‘‘para11 graph (1), (2), or (3)’’.

12 (b) TIMELY PROVISION OF INFORMATION AND CON13 SULTATION ON ESPIONAGE INVESTIGATIONS.—Paragraph

14 (2) of that subsection is further amended—

15 (1) by inserting ‘‘in a timely manner’’ after

16 ‘‘through appropriate channels’’; and

17 (2) by inserting ‘‘in a timely manner’’ after

18 ‘‘are consulted’’.

19 (c) INTERFERENCE WITH FULL FIELD ESPIONAGE

20 INVESTIGATIONS.—That subsection is further amended by

21 inserting after paragraph (3), as amended by subsection

22 (a) of this section, the following new paragraph (4):

23 ‘‘(4)(A) The Federal Bureau of Investigation shall

24 notify appropriate officials within the executive branch, in25 cluding the head of the department or agency concerned,
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1 of the commencement of a full field espionage investiga2 tion with respect to an employee within the executive

3 branch.

4 ‘‘(B)(i) A department or agency may not conduct a

5 polygraph examination, interrogate, or otherwise take any

6 action that is likely to alert an employee covered by a no7 tice under subparagraph (A) of an investigation described

8 in that subparagraph without prior coordination with the

9 Federal Bureau of Investigation.

10 ‘‘(ii) Any examination, interrogation, or other action

11 taken under clause (i) shall be taken in consultation with

12 the Federal Bureau of Investigation.’’.

13 (d) COORDINATION OF INFORMATION ON ESPIONAGE

14 INVESTIGATIONS.—That subsection is further amended by

15 inserting after paragraph (7), as redesignated by sub16 section (a)(2) of this section, the following new paragraph

17 (8):

18 ‘‘(8) The Director of the Federal Bureau of Inves19 tigation shall be responsible for coordinating all informa20 tion relating to espionage investigations, including infor21 mation on any prior or current relationship between the

22 subjects of such investigations and any Federal intel23 ligence or intelligence-related activity, within the intel24 ligence community and within and among Federal law en25 forcement agencies.’’.
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1 (e) REQUESTS FOR TECHNICAL ASSISTANCE.—That

2 section is further amended by adding at the end the fol3 lowing new subsection (d):

4 ‘‘(d) REQUESTS FOR TECHNICAL ASSISTANCE.—The

5 Director of the Federal Bureau of Investigation and the

6 Director of the National Security Agency shall establish

7 procedures to ensure the timely evaluation and determina8 tions regarding requests from the Federal Bureau of In9 vestigation for technical assistance in counterintelligence

10 activities covered by this section.’’.

11 SEC. 7. SEVERABILITY.

12 If any provision of this Act (including an amendment

13 made by this Act), or the application thereof, to any per14 son or circumstance, is held invalid, the remainder of this

15 Act (including the amendments made by this Act), and

16 the application thereof, to other persons or circumstances

17 shall not be affected thereby.

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