`[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 3876 Placed on Calendar Senate (PCS)]







                                                       Calendar No. 599
109th CONGRESS
  2d Session
                                S. 3876

            Entitled The National Security Surveillance Act.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

            September 7 (legislative day, September 6), 2006

  Mr. Specter introduced the following bill; which was read the first 
                                  time

                           September 8, 2006

            Read the second time and placed on the calendar

_______________________________________________________________________

                                 A BILL


 
            Entitled The National Security Surveillance Act.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``National Security Surveillance Act 
of 2006''.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) After the terrorist attacks of September 11, 2001, 
        President Bush authorized the National Security Agency to 
        intercept communications between people inside the United 
        States, including American citizens, and terrorism suspects 
        overseas.
            (2) One of the lessons learned from September 11, 2001, is 
        that the enemies who seek to greatly harm and terrorize our 
        Nation utilize technologies and techniques that defy 
        conventional law enforcement practices.
            (3) For days before September 11, 2001, the Federal Bureau 
        of Investigation suspected that confessed terrorist Zacarias 
        Moussaoui was planning to hijack a commercial plane. The 
        Federal Bureau of Investigation, however, could not meet the 
        requirements to obtain a traditional criminal warrant or an 
        order under the Foreign Intelligence Surveillance Act of 1978 
        to search his laptop computer (Report of the 9/11 Commission 
        273-76).
            (4) The President, as the constitutional officer most 
        directly responsible for protecting the United States from 
        attack, requires the ability and means to detect and track an 
        enemy that can master and exploit modern technology.
            (5) It is equally essential, however, that in protecting 
        the United Sates against our enemies, the President does not 
        compromise the very civil liberties that he seeks to safeguard. 
        As Justice Hugo Black observed, ``The President's power, if 
        any, to issue [an] order must stem either from an Act of 
        Congress or from the Constitution itself.'' Youngstown Sheet & 
        Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952) (opinion by Black, 
        J.). Similarly, in 2004, Justice Sandra Day O'Connor explained 
        in her plurality opinion for the Supreme Court in Hamdi v. 
        Rumsfeld: ``We have long since made clear that a state of war 
        is not a blank check for the President when it comes to the 
        rights of the Nation's citizens.'' Hamdi v. Rumsfeld, 542 U.S. 
        507, 536 (2004) (citations omitted).
            (6) When deciding issues of national security, it is in our 
        Nation's best interest that, to the extent feasible, all 3 
        branches of the Federal Government should be involved. This 
        helps guarantee that electronic surveillance programs do not 
        infringe on the constitutional rights of Americans, while at 
        the same time ensuring that the President has all the powers 
        and means necessary to detect and track our enemies and protect 
        our Nation from attack.
            (7) As Justice Sandra Day O'Connor explained in her 
        plurality opinion for the Supreme Court in Hamdi v. Rumsfeld, 
        ``Whatever power the United States Constitution envisions for 
        the Executive in its exchanges with other nations or with enemy 
        organizations in times of conflict, it most assuredly envisions 
        a role for all 3 branches when individual liberties are at 
        stake.'' Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (citations 
        omitted).
            (8) Similarly, Justice Jackson famously explained in his 
        Youngstown concurrence: ``When the President acts pursuant to 
        an express or implied authorization of Congress, his authority 
        is at its maximum, for it includes all that he possesses in his 
        own right plus all that Congress can delegate... When the 
        President acts in absence of either a congressional grant or 
        denial of authority, he can only rely upon his own independent 
        powers, but there is a zone of twilight in which he and 
        Congress may have concurrent authority, or in which its 
        distribution is uncertain. Therefore, congressional inertia, 
        indifference or quiescence may sometimes, at least as a 
        practical matter, enable, if not invite, measures on 
        independent presidential responsibility... When the President 
        takes measures incompatible with the expressed or implied will 
        of Congress, his power is at its lowest ebb, for then he can 
        rely only upon his own constitutional powers minus any 
        constitutional powers of Congress over the matter. Courts can 
        sustain exclusive Presidential control in such a case only by 
        disabling the Congress from acting upon the subject.'' 
        Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 
        (1952) (Jackson, J., concurring).
            (9) Congress clearly has the authority to enact legislation 
        with respect to electronic surveillance programs. The 
        Constitution provides Congress with broad powers of oversight 
        over national security and foreign policy, under article I, 
        section 8 of the Constitution of the United States, which 
        confers on Congress numerous powers, including the powers--
                    (A) ``To declare War, grant Letters of Marque and 
                Reprisal, and make Rules concerning Captures on Land 
                and Water'';
                    (B) ``To raise and support Armies'';
                    (C) ``To provide and maintain a Navy'';
                    (D) ``To make Rules for the Government and 
                Regulation of the land and naval Forces'';
                    (E) ``To provide for calling forth the Militia to 
                execute the Laws of the Union, suppress Insurrections 
                and repel Invasions''; and
                    (F) ``To provide for organizing, arming, and 
                disciplining the Militia, and for governing such Part 
                of them as may be employed in the Service of the United 
                States''.
            (10) While Attorney General Alberto Gonzales explained that 
        the executive branch reviews the electronic surveillance 
        program of the National Security Agency every 45 days to ensure 
        that the program is not overly broad, it is the belief of 
        Congress that approval and supervision of electronic 
        surveillance programs should be conducted outside of the 
        executive branch, by the article III court established under 
        section 103 of the Foreign Intelligence Surveillance Act of 
        1978 (50 U.S.C. 1803). It is also the belief of Congress that 
        it is appropriate for an article III court to pass upon the 
        constitutionality of electronic surveillance programs that may 
        implicate the rights of Americans.
            (11) The Foreign Intelligence Surveillance Court is the 
        proper court to approve and supervise classified electronic 
        surveillance programs because it is adept at maintaining the 
        secrecy with which it was charged and it possesses the 
        requisite expertise and discretion for adjudicating sensitive 
        issues of national security.
            (12) In 1975, [then] Attorney General Edward Levi, a strong 
        defender of executive authority, testified that in times of 
        conflict, the President needs the power to conduct long-range 
        electronic surveillance and that a foreign intelligence 
        surveillance court should be empowered to issue special 
        approval orders in these circumstances.
            (13) The Foreign Intelligence Surveillance Act of 1978 
        clarifies and definitively establishes that the Foreign 
        Intelligence Surveillance Court has the authority to review 
        electronic surveillance programs and pass upon their 
        constitutionality. Such authority is consistent with well-
        established, longstanding practices.
            (14) The Foreign Intelligence Surveillance Court already 
        has broad authority to approve surveillance of members of 
        international conspiracies, in addition to granting warrants 
        for surveillance of a particular individual under sections 104, 
        105, and 402 of the Foreign Intelligence Surveillance Act of 
        1978 (50 U.S.C. 1804, 1805, and 1842).
            (15) Prosecutors have significant flexibility in 
        investigating domestic conspiracy cases. Courts have held that 
        flexible warrants comply with the 4th amendment to the 
        Constitution of the United States when they relate to complex, 
        far-reaching, and multifaceted criminal enterprises like drug 
        conspiracies and money laundering rings. The courts recognize 
        that applications for search warrants must be judged in a 
        common sense and realistic fashion, and the courts permit broad 
        warrant language where, due to the nature and circumstances of 
        the investigation and the criminal organization, more precise 
        descriptions are not feasible.
            (16) Federal agents investigating international terrorism 
        by foreign enemies are entitled to tools at least as broad as 
        those used by law enforcement officers investigating domestic 
        crimes by United States citizens. The Supreme Court, in the 
        ``Keith Case'', United States v. United States District Court 
        for the Eastern District of Michigan, 407 U.S. 297 (1972), 
        recognized that the standards and procedures used to fight 
        ordinary crime may not be applicable to cases involving 
        national security. The Court recognized that national 
        ``security surveillance may involve different policy and 
        practical considerations from the surveillance of ordinary 
        crime'' and that courts should be more flexible in issuing 
        warrants in national security cases. United States v. United 
        States District Court for the Eastern District of Michigan, 407 
        U.S. 297, 322 (1972).
            (17) By authorizing the Foreign Intelligence Surveillance 
        Court to review electronic surveillance programs, Congress 
        preserves the ability of the President to use the necessary 
        means to guard our national security, while also protecting the 
        civil liberties and constitutional rights that we cherish.

SEC. 3. DEFINITIONS.

    The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 
et seq.) is amended--
            (1) by redesignating title VII as title IX;
            (2) by redesignating section 701 as section 901; and
            (3) by inserting after title VI the following:

                  ``TITLE VII--ELECTRONIC SURVEILLANCE

``SEC. 701. DEFINITION.

    ``As used in this title--
            ``(1) the terms `agent of a foreign power', `Attorney 
        General', `foreign power', `international terrorism', 
        `minimization procedures', `person', `United States', and 
        `United States person' have the same meaning as in section 101;
            ``(2) the term `congressional intelligence committees' 
        means the Select Committee on Intelligence of the Senate and 
        the Permanent Select Committee on Intelligence of the House of 
        Representatives;
            ``(3) the term `electronic communication' means any 
        transfer of signs, signals, writing, images, sounds, data, or 
        intelligence of any nature transmitted, in whole or in part, by 
        a wire, radio, electro magnetic, photo electronic or photo 
        optical system, cable, or other like connection furnished or 
        operated by any person engaged as a common carrier in providing 
        or operating such facilities for the transmission of 
        communications;
            ``(4) the term `electronic tracking' means the acquisition 
        by an electronic, mechanical, or other surveillance device of 
        the substance of any electronic communication sent by, received 
        by, or intended to be received by a person who is reasonably 
        believed to be in the United States, through the intentional 
        targeting of that person's communications, where a person in 
        the United States participating in the communication has a 
        reasonable expectation of privacy;
            ``(5) the term `electronic surveillance program' means a 
        program to engage in electronic tracking--
                    ``(A) that has as a significant purpose the 
                gathering of foreign intelligence information or 
                protecting against international terrorism;
                    ``(B) where it is not technically feasible to name 
                every person or address every location to be subjected 
                to electronic tracking;
                    ``(C) where effective gathering of foreign 
                intelligence information requires the flexibility to 
                begin electronic surveillance immediately after 
                learning of suspect activity; and
                    ``(D) where effective gathering of foreign 
                intelligence information requires an extended period of 
                electronic surveillance;
            ``(6) the term `foreign intelligence information' has the 
        same meaning as in section 101 and includes information 
        necessary to protect against international terrorism;
            ``(7) the term `Foreign Intelligence Surveillance Court' 
        means the court established under section 103(a);
            ``(8) the term `Foreign Intelligence Surveillance Court of 
        Review' means the court established under section 103(b);
            ``(9) the term `intercept' means the acquisition of the 
        substance of any electronic communication by a person through 
        the use of any electronic, mechanical, or other device; and
            ``(10) the term `substance' means any information 
        concerning the symbols, sounds, words, purport, or meaning of a 
        communication, and does not include dialing, routing, 
        addressing, or signaling.''.

SEC. 4. FOREIGN INTELLIGENCE SURVEILLANCE COURT JURISDICTION TO REVIEW 
              ELECTRONIC SURVEILLANCE PROGRAMS.

    (a) In General.--Title VII of the Foreign Intelligence Surveillance 
Act of 1978, as amended by section 3, is amended by adding at the end 
the following:

``SEC. 702. FOREIGN INTELLIGENCE SURVEILLANCE COURT JURISDICTION TO 
              REVIEW ELECTRONIC SURVEILLANCE PROGRAMS.

    ``(a) Authorization of Review.--
            ``(1) Initial authorization.--The Foreign Intelligence 
        Surveillance Court shall have jurisdiction to issue an order 
        under this title, lasting not longer than 90 days, that 
        authorizes an electronic surveillance program to obtain foreign 
        intelligence information or to protect against international 
        terrorism.
            ``(2) Reauthorization.--The Foreign Intelligence 
        Surveillance Court shall have jurisdiction to reauthorize an 
        electronic surveillance program for a period of time not longer 
        than such court determines to be reasonable.
            ``(3) Resubmission or appeal.--In the event that the 
        Foreign Intelligence Surveillance Court refuses to approve an 
        application under this subsection, the Attorney General may 
        submit a new application. There shall be no limit on the number 
        of times the Attorney General may seek approval of an 
        electronic surveillance program. Alternatively, the Attorney 
        General may appeal the decision of the Foreign Intelligence 
        Surveillance Court to the Foreign Intelligence Surveillance 
        Court of Review.
    ``(b) Mandatory Transfer for Review.--
            ``(1) In general.--In any case before any court challenging 
        the legality of classified communications intelligence activity 
        relating to a foreign threat, including an electronic 
        surveillance program, or in which the legality of any such 
        activity or program is in issue, if the Attorney General files 
        an affidavit under oath that the case should be transferred to 
        the Foreign Intelligence Court of Review because further 
        proceedings in the originating court would harm the national 
        security of the United States, the originating court shall 
        transfer the case to the Foreign Intelligence Surveillance 
        Court of Review for further proceedings under this subsection.
            ``(2) Retransfer to originating court.--Upon completion of 
        review pursuant to this subsection, the Foreign Intelligence 
        Surveillance Court of Review shall remand the case to the 
        originating court for further proceedings consistent with its 
        opinion.
            ``(3) Preservation of litigation.--In any case that is 
        transferred and received under this subsection, all litigation 
        privileges shall be preserved.
            ``(4) Certiorari and effects of decisions.--The decision 
        the Foreign Intelligence Surveillance Court of Review made 
        under paragraph (1), including a decision that the disclosure 
        of national security information is constitutionally required, 
        shall be subject to certiorari review in the United States 
        Supreme Court, and shall otherwise be binding in all other 
        courts.
            ``(5) Dismissal.--The Foreign Intelligence Surveillance 
        Court of Review or a court that is an originating court under 
        paragraph (1) may dismiss a challenge to the legality of an 
        electronic surveillance program for any reason provided for 
        under law.
    ``(c) Modifications and Appeal in Event Application Is Denied.--In 
the event that the Foreign Intelligence Surveillance Court declines to 
approve an application under subsection (a)--
            ``(1) the court shall state its reasons in a written 
        opinion, which it shall submit to the Attorney General; and
            ``(2) the Attorney General may submit a new application 
        under section 703 for the electronic surveillance program.''.

SEC. 5. APPLICATIONS FOR APPROVAL OF ELECTRONIC SURVEILLANCE PROGRAMS.

    Title VII of the Foreign Intelligence Surveillance Act of 1978, as 
amended by section 4, is amended by adding at the end the following:

``SEC. 703. APPLICATIONS FOR APPROVAL OF ELECTRONIC SURVEILLANCE 
              PROGRAMS.

    ``(a) In General.--Each application for approval of an electronic 
surveillance program under this title (including for reauthorization) 
shall--
            ``(1) be made by the Attorney General or his designee;
            ``(2) include a statement of the authority conferred on the 
        Attorney General by the President of the United States;
            ``(3) include a statement setting forth the legal basis for 
        the conclusion by the Attorney General that the electronic 
        surveillance program is consistent with the Constitution of the 
        United States;
            ``(4) certify that a significant purpose of the electronic 
        surveillance program is to gather foreign intelligence 
        information or to protect against international terrorism;
            ``(5) certify that the information sought cannot reasonably 
        be obtained by normal investigative techniques or through an 
        application under section 104;
            ``(6) include a statement of the means and operational 
        procedures by which the electronic tracking will be executed 
        and effected;
            ``(7) include an explanation of how the electronic 
        surveillance program is reasonably designed to ensure that the 
        communications that are intercepted are communications of or 
        with--
                    ``(A) a foreign power that is engaged in 
                international terrorism activities or in preparation 
                therefor;
                    ``(B) an agent of a foreign power that is engaged 
                in international terrorism activities or in preparation 
                therefor; or
                    ``(C) a person reasonably believed to have 
                communication with or be associated with a foreign 
                power that is engaged in international terrorism 
                activities or in preparation therefor or an agent of a 
                foreign power that is engaged in international 
                terrorism activities or in preparation therefor;
            ``(8) include a statement of the proposed minimization 
        procedures;
            ``(9) if the electronic surveillance program that is the 
        subject of the application was initiated prior to the date the 
        application was submitted, specify the date that the program 
        was initiated;
            ``(10) include a description of all previous applications 
        that have been made under this title involving the electronic 
        surveillance program in the application (including the 
        minimization procedures and the means and operational 
        procedures proposed) and the decision on each previous 
        application; and
            ``(11) include a statement of facts concerning the 
        implementation of the electronic surveillance program described 
        in the application, including, for any period of operation of 
        the program authorized not less than 90 days prior to the date 
        of submission of the application--
                    ``(A) the minimization procedures implemented; and
                    ``(B) the means and operational procedures by which 
                the electronic tracking was executed and effected.
    ``(b) Additional Information.--The Foreign Intelligence 
Surveillance Court may require the Attorney General to furnish such 
other information as may be necessary to make a determination under 
section 704.''.

SEC. 6. APPROVAL OF ELECTRONIC SURVEILLANCE PROGRAMS.

    Title VII of the Foreign Intelligence Surveillance Act 18 of 1978, 
as amended by section 5, is amended by adding at the end the following:

``SEC. 704. APPROVAL OF ELECTRONIC SURVEILLANCE PROGRAMS.

    ``(a) Necessary Findings.--Upon receipt of an application under 
section 703, the Foreign Intelligence Surveillance Court shall enter an 
ex parte order as requested, or as modified, approving the electronic 
surveillance program if it finds that--
            ``(1) the President has authorized the Attorney General to 
        make the application for electronic surveillance for foreign 
        intelligence information or to protect against international 
        terrorism;
            ``(2) approval of the electronic surveillance program in 
        the application is consistent with the Constitution of the 
        United States;
            ``(3) the electronic surveillance program is reasonably 
        designed to ensure that the communications that are intercepted 
        are communications of or with--
                    ``(A) a foreign power that is engaged in 
                international terrorism activities or in preparation 
                therefor;
                    ``(B) an agent of a foreign power that is engaged 
                in international terrorism activities or in preparation 
                therefor; or
                    ``(C) a person reasonably believed to have 
                communication with or be associated with a foreign 
                power that is engaged in international terrorism 
                activities or in preparation therefor or an agent of a 
                foreign power that is engaged in international 
                terrorism activities or in preparation therefor;
            ``(4) the proposed minimization procedures meet the 
        definition of minimization procedures under section 101(h); and
            ``(5) the application contains all statements and 
        certifications required by section 703.
    ``(b) Considerations.--In considering the constitutionality of the 
electronic surveillance program under subsection (a), the Foreign 
Intelligence Surveillance Court may consider--
            ``(1) whether the electronic surveillance program has been 
        implemented in accordance with the proposal by the Attorney 
        General by comparing--
                    ``(A) the minimization procedures proposed with the 
                minimization procedures actually implemented;
                    ``(B) the nature of the information sought with the 
                nature of the information actually obtained; and
                    ``(C) the means and operational procedures proposed 
                with the means and operational procedures actually 
                implemented; and
            ``(2) whether foreign intelligence information has been 
        obtained through the electronic surveillance program.
    ``(c) Contents of Order.--An order approving an electronic 
surveillance program under this section shall direct--
            ``(1) that the minimization procedures be followed;
            ``(2) that, upon the request of the applicant, specified 
        communication or other common carriers, landlords, custodians, 
        or other specified person, furnish the applicant forthwith with 
        all information, facilities, or technical assistance necessary 
        to undertake the electronic surveillance program in such a 
        manner as will protect its secrecy and produce a minimum of 
        interference with the services that such carriers, landlords, 
        custodians, or other persons are providing potential targets of 
        the electronic surveillance program;
            ``(3) that any record concerning the electronic 
        surveillance program or the aid furnished or retained by such 
        carriers, landlords, custodians, or other persons are 
        maintained under security procedures approved by the Attorney 
        General and the Director of National Intelligence; and
            ``(4) that the applicant compensate, at the prevailing 
        rate, such carriers, landlords, custodians, or other persons 
        for furnishing such aid.''.

SEC. 7. CONGRESSIONAL OVERSIGHT.

    Title VII of the Foreign Intelligence Surveillance Act of 1978, as 
amended by section 6, is amended by adding at the end the following:

``SEC. 705. CONGRESSIONAL OVERSIGHT.

    ``(a) In General.--Not less often than every 180 days, the Attorney 
General shall submit to the congressional intelligence committees a 
report in classified form on the activities during the previous 180-day 
period under any electronic surveillance program authorized under this 
title.
    ``(b) Contents.--Each report submitted under subsection (a) shall 
provide, with respect to the previous 180-day period, a description 
of--
            ``(1) the minimization procedures implemented;
            ``(2) the means and operational procedures by which the 
        surveillance was executed and effected;
            ``(3) significant decisions of the Foreign Intelligence 
        Surveillance Court on applications made under section 703;
            ``(4) the total number of applications made for orders 
        approving electronic surveillance pursuant to this title; and
            ``(5) the total number of orders applied for that are 
        granted, modified, or denied.
    ``(c) Rule of Construction.--Nothing in this title shall be 
construed to limit the authority or responsibility of any committee of 
either House of Congress to obtain such information as such committee 
may need to carry out its respective functions and duties.''.

SEC. 8. CLARIFICATION OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 
              1978.

    (a) In General.--The Foreign Intelligence Surveillance Act of 1978 
(50 U.S.C. 1801 et seq.) is amended by inserting after title VII, as 
amended by this Act, the following:

                   ``TITLE VIII--EXECUTIVE AUTHORITY

``SEC. 801. EXECUTIVE AUTHORITY.

    ``Nothing in this Act shall be construed to limit the 
constitutional authority of the President to collect intelligence with 
respect to foreign powers and agents of foreign powers.''.
    (b) Repeal.--Sections 111, 309, and 404 of the Foreign Intelligence 
Surveillance Act of 1978 (50 U.S.C. 1811, 1829, and 1844) are repealed.
    (c) Conforming Amendments.--
            (1) Title 18.--Section 2511(2) of title 18, United States 
        Code, is amended--
                    (A) in paragraph (e), by striking ``, as defined in 
                section 101'' and all that follows through the end of 
                the paragraph and inserting the following: ``under the 
                Constitution or the Foreign Intelligence Surveillance 
                Act of 1978.''; and
                    (B) in paragraph (f), by striking ``from 
                international or foreign communications,'' and all that 
                follows through the end of the paragraph and inserting 
                ``that is authorized under a Federal statute or the 
                Constitution of the United States.''
            (2) FISA.--Section 109 of the Foreign Intelligence 
        Surveillance Act of 1978 (50 U.S.C. 1809) is amended--
                    (A) in subsection (a)--
                            (i) in paragraph (1)--
                                    (I) by inserting ``or under the 
                                Constitution'' after ``authorized by 
                                statute''; and
                                    (II) by striking ``or'' at the end;
                            (ii) in paragraph (2)--
                                    (I) by inserting ``or under the 
                                Constitution'' after ``authorized by 
                                statute''; and
                                    (II) by striking the period and 
                                inserting ``; or''; and
                            (iii) by adding at the end the following:
            ``(3) knowingly discloses or uses information obtained 
        under color of law by electronic surveillance in a manner or 
        for a purpose not authorized by law.''; and
                    (B) in subsection (c)--
                            (i) by striking ``$10,000'' and inserting 
                        ``$100,000''; and
                            (ii) by striking ``five years'' and 
                        inserting ``15 years''.

SEC. 9. OTHER CONFORMING AMENDMENTS TO FISA.

    (a) Reference.--In this section, a reference to ``FISA'' shall mean 
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et 
seq.)
    (b) Definitions.--Section 101 of FISA (50 U.S.C. 1801) is amended--
            (1) in subsection (b)(1)--
                    (A) in subparagraph (B), by striking ``or'' after 
                the semicolon; and
                    (B) by adding at the end the following:
                    ``(D) otherwise possesses or is expected to 
                transmit or receive foreign intelligence information 
                within the United States; or'';
            (2) by striking subsection (f) and inserting the following:
    ``(f) `Electronic surveillance' means--
            ``(1) the installation or use of an electronic, mechanical, 
        or other surveillance device for the intentional collection of 
        information concerning a particular known person who is 
        reasonably believed to be in the United States by intentionally 
        targeting that person under circumstances in which that person 
        has a reasonable expectation of privacy and a warrant would be 
        required for law enforcement purposes; or
            ``(2) the intentional acquisition of the contents of any 
        communication under circumstances in which a person has a 
        reasonable expectation of privacy and a warrant would be 
        required for law enforcement purposes, and if both the sender 
        and all intended recipients are located within the United 
        States.'';
            (3) in subsection (g), by inserting before the period the 
        following: ``or a person or persons designated by the Attorney 
        General or Acting Attorney General'';
            (4) in subsection (h)--
                    (A) in paragraph (2), by inserting ``and'' after 
                the semicolon;
                    (B) in paragraph (3), by striking ``; and'' and 
                inserting a period; and
                    (C) by striking paragraph (4); and
            (5) by striking subsection (n) and inserting the following:
    ``(n) `contents' has the meaning set forth in section 2510(8) of 
title 18, United States Code.''.
    (c) Electronic Surveillance Authorization.--Section 102 of FISA (50 
U.S.C. 1802) is amended to read as follows:

     ``electronic surveillance authorization without court order; 
certification by attorney general; reports to congressional committees; 
transmittal under seal; duties and compensation of communication common 
              carrier; applications; jurisdiction of court

    ``Sec. 102.  (a)(1) Notwithstanding any other law, the President 
through the Attorney General, may authorize electronic surveillance 
without a court order under this title to acquire foreign intelligence 
information for periods of up to 1 year if the Attorney General 
certifies in writing under oath that--
            ``(A)(i) the acquisition of the contents of communications 
        of foreign powers, as defined in section 101(a), an agent of a 
        foreign power as defined in section 101(b)(1); or
            ``(ii) the acquisition of technical intelligence, other 
        than the spoken communications of individuals, from property or 
        premises under the open and exclusive control of a foreign 
        power, as defined in paragraph (1), (2), or (3) of section 
        101(a); and
            ``(B) the proposed minimization procedures with respect to 
        such surveillance meet the definition of minimization 
        procedures under section 101(h);
if the Attorney General reports such minimization procedures and any 
changes thereto to the Senate Select Committee on Intelligence and the 
House Permanent Select Committee on Intelligence at least 30 days prior 
to their effective date, unless the Attorney General determines 
immediate action is required and notifies the committees immediately of 
such minimization procedures and the reason for their becoming 
effective immediately.
    ``(2) An electronic surveillance authorized by this subsection may 
be conducted only in accordance with the Attorney General's 
certification and the minimization procedures. The Attorney General 
shall assess compliance with such procedures and shall report such 
assessments to the Senate Select Committee on Intelligence and the 
House Permanent Select Committee on Intelligence under the provisions 
of section 108(a).
    ``(3) The Attorney General shall immediately transmit under seal to 
the court established under section 103(a) a copy of his certification. 
Such certification shall be maintained under security measures 
established by the Chief Justice with the concurrence of the Attorney 
General, in consultation with the Director of National Intelligence, 
and shall remain sealed unless--
            ``(A) an application for a court order with respect to the 
        surveillance is made under section 104; or
            ``(B) the certification is necessary to determine the 
        legality of the surveillance under section 106(f).
    ``(b) The Attorney General is also authorized to deliver to a 
provider of any electronic communication service, landlord, custodian, 
or other person (including any officer, employee, agent, or other 
specified person thereof) who has access to electronic communications, 
either as they are transmitted or while they are stored, or equipment 
that is being or may be used to transmit or store such communications, 
a certificate requiring that such person or persons furnish any 
information, facilities, or technical assistance to an official 
authorized by the President to engage in electronic surveillance for 
foreign intelligence purposes, for periods of up to 1 year if the 
Attorney General certifies in writing to the carrier under oath that 
such provision of information, facilities, or technical assistance does 
not constitute electronic surveillance as defined in section 101(f).
    ``(c) With respect to electronic surveillance or the furnishing of 
any information, facilities, or technical assistance authorized by this 
section, the Attorney General may direct a provider of any electronic 
communication service, landlord, custodian or other person (including 
any officer, employee, agent, or other specified person thereof) who 
has access to electronic communications, either as they are transmitted 
or while they are stored or equipment that is being or may be used to 
transmit or store such communications to--
            ``(1) furnish all information, facilities, or technical 
        assistance necessary to accomplish the electronic surveillance 
        in such a manner as will protect its secrecy and produce a 
        minimum of interference with the services that such provider of 
        any electronic communication service, landlord, custodian, or 
        other person is providing its customers; and
            ``(2) maintain under security procedures approved by the 
        Attorney General and the Director of National Intelligence any 
        records concerning the surveillance or the aid furnished which 
        such provider of any electronic communication service, 
        landlord, custodian, or other person wishes to retain.
The Government shall compensate, at the prevailing rate, such provider 
of any electronic communication service, landlord, custodian, or other 
person for furnishing such aid.
    ``(d) Electronic surveillance directed solely at the collection of 
international radio communications of diplomatically immune persons in 
the United States may be authorized by an official authorized by the 
President to engage in electronic surveillance for foreign intelligence 
purposes in accordance with procedures approved by the Attorney 
General.''.
    (d) Designation of Judges.--Section 103 of FISA (50 U.S.C. 1803) is 
amended in subsection (a), by inserting, ``at least'' before ``seven of 
the United States Judiciary''.
    (e) Applications for Court Orders.--Section 104 of FISA (50 U.S.C. 
1804) is amended:
            (1) in subsection (a), by striking paragraphs (6) through 
        (11) and inserting the following:
            ``(6) a certification or certifications by the Assistant to 
        the President for National Security Affairs or an executive 
        branch official authorized by the President to conduct 
        electronic surveillance for foreign intelligence purposes--
                    ``(A) that the certifying official deems the 
                information sought to be foreign intelligence 
                information;
                    ``(B) that a significant purpose of the 
                surveillance is to obtain foreign intelligence 
                information;
                    ``(C) that such information cannot reasonably be 
                obtained by normal investigative techniques; and
                    ``(D) including a statement of the basis for the 
                certification that--
                            ``(i) the information sought is the type of 
                        foreign intelligence information designated; 
                        and
                            ``(ii) such information cannot reasonably 
                        be obtained by normal investigative techniques; 
                        and
            ``(7) a statement of the period of time for which the 
        electronic surveillance is required to be maintained, and if 
        the nature of the intelligence gathering is such that the 
        approval of the use of electronic surveillance under this title 
        should not automatically terminate when the described type of 
        information has first been obtained, a description of facts 
        supporting the belief that additional information of the same 
        type will be obtained thereafter.'';
            (2) by striking subsection (b); and
            (3) by redesignating subsections (c) through (e) as 
        subsections (b) through (d), respectively.
    (f) Issuance of Order.--Section 105 of FISA (50 U.S.C. 1805) is 
amended--
            (1) in subsection (a), by--
                    (A) striking paragraph (1); and
                    (B) redesignating paragraphs (2) through (5) as 
                paragraphs (1) through (4), respectively;
            (2) by striking paragraph (1) of subsection (c) and 
        inserting the following:
    ``(1) An order approving an electronic surveillance under this 
section shall specify--
            ``(A) the identity, if known, or a description of the 
        specific target of the electronic surveillance identified or 
        described in the application pursuant to section 104(a)(3);
            ``(B) the nature and location of each of the facilities or 
        places at which the electronic surveillance will be directed, 
        if known; and
            ``(C) the period of time during which the electronic 
        surveillance is approved.'';
            (3) by striking subsection (d) and inserting the following:
    ``(d) Each order under this section shall specify the type of 
electronic surveillance involved, including whether physical entry is 
required.'';
            (4) by striking paragraphs (1) and (2) of subsection (e) 
        and inserting the following:
    ``(1) An order issued under this section may approve an electronic 
surveillance may be for a period not to exceed 1 year. If such 
emergency employment of electronic surveillance is authorized, the 
official authorizing the emergency employment of electronic 
surveillance shall require that the minimization procedures required by 
this title for the issuance of a judicial order be followed.
    ``(2) Extensions of an order issued under this title may be granted 
on the same basis as an original order upon an application for an 
extension and new findings made in the same manner as required for an 
original order and may be for a period not to exceed 1 year.'';
            (5) by striking subsection (f) and inserting the following:
    ``(f)(1) Notwithstanding any other provision of this title, when an 
official authorized by the President to conduct electronic surveillance 
reasonably determines that--
            ``(A) an emergency situation exists with respect to the 
        employment of electronic surveillance to obtain foreign 
        intelligence information before an order authorizing such 
        surveillance can with due diligence be obtained; and
            ``(B) the factual basis for issuance of an order under this 
        title to approve such surveillance exists;
that official may authorize the emergency employment of electronic 
surveillance in accordance with paragraph (2).
    ``(2) Under paragraph (1), the following requirements shall be 
satisfied:
            ``(A) The Attorney General shall be informed of the 
        emergency electronic surveillance.
            ``(B) A judge having jurisdiction under section 103 shall 
        be informed by the Attorney General or his designee as soon as 
        practicable following such authorization that the decision has 
        been made to employ emergency electronic surveillance.
            ``(C) An application in accordance with this title shall be 
        made to that judge or another judge having jurisdiction under 
        section 103 as soon as practicable, but not more than 7 days 
        after such surveillance is authorized. In the absence of a 
        judicial order approving such electronic surveillance, the 
        surveillance shall terminate when the information sought is 
        obtained, when the application for the order is denied, or 
        after the expiration of 7 days from the time of emergency 
        authorization, whichever is earliest. In the event that such 
        application for approval is denied, or in any other case where 
        the electronic surveillance is terminated and no order is 
        issued approving the surveillance, no information obtained or 
        evidence derived from such surveillance shall be received in 
        evidence or otherwise disclosed in any trial, hearing, or other 
        proceeding in or before any court, grand jury, department, 
        office, agency, regulatory body, legislative committee, or 
        other authority of the United States, a State, or political 
        subdivision thereof, and no information concerning any United 
        States person acquired from such surveillance shall 
        subsequently be used or disclosed in any other manner by 
        Federal officers or employees without the consent of such 
        person, except with the approval of the Attorney General if the 
        information indicates a threat of death or serious bodily harm 
        to any person. A denial of the application made under this 
        subsection may be reviewed as provided in section 103.''; and
            (6) in subsection (i) by--
                    (A) striking ``a wire or'' and inserting ``any'';
                    (B) striking ``chapter'' and inserting ``title''; 
                and
                    (C) by adding at the end ``, or in response to 
                certification by the Attorney General or his designee 
                seeking information, facilities, or technical 
                assistance from such person that does not constitute 
                electronic surveillance as defined in section 101(f 
                )''.
    (g) Use of Information.--Section 106 of FISA (50U.S.C. 1806) is 
amended--
            (1) in subsection (i), by--
                    (A) deleting ``radio''; and
                    (B) inserting ``Attorney General determines that 
                the content'' after ``contain significant foreign 
                intelligence or''; and
            (2) in subsection (k), by deleting ``104(a)(7)'' and 
        inserting ``104(a)(6)''.
    (h) Congressional Oversight.--Section 108 of FISA (50 U.S.C. 1808) 
is amended by adding at the end the following:
    ``(c) Document Management System for Applications for Orders 
Approving Electronic Surveillance.--
            ``(1) System proposed.--The Attorney General and Director 
        of National Intelligence shall, in consultation with the 
        Director of the Federal Bureau of Investigation, the Director 
        of the National Security Agency, the Director of the Central 
        Intelligence Agency, and the Foreign Intelligence Surveillance 
        Court, conduct a feasibility study to develop and implement a 
        secure, classified document management system that permits the 
        prompt preparation, modification, and review by appropriate 
        personnel of the Department of Justice, the Federal Bureau of 
        Investigation, the National Security Agency, and other 
        applicable elements of the United States Government of 
        applications under section 104 before their submittal to the 
        Foreign Intelligence Surveillance Court.
            ``(2) Scope of system.--The document management system 
        proposed in paragraph (1) shall--
                    ``(A) permit and facilitate the prompt submittal of 
                applications and all other matters, including 
                electronic filings, to the Foreign Intelligence 
                Surveillance Court under section 104 or 105(g)(5); and
                    ``(B) permit and facilitate the prompt transmittal 
                of rulings of the Foreign Intelligence Surveillance 
                Court to personnel submitting applications described in 
                paragraph (1).''.
    (i) Criminal Sanctions.--Section 109 of FISA (50 U.S.C. 1809) is 
amended by striking subsection (a) and inserting the following:
    ``(a) Prohibited Activities.--A person is guilty of an offense if 
he intentionally--
            ``(1) engages in electronic surveillance, as defined in 
        section 101(f), under color of law except as authorized by law; 
        or
            ``(2) discloses or uses information obtained under color of 
        law by electronic surveillance, knowing or having reason to 
        know that the information was obtained through electronic 
        surveillance not authorized by law.''.
    (j) Authorization During Time of War.--Title I of FISA is amended 
by striking section 111.
    (k) Physical Searches.--Title III of Foreign Intelligence 
Surveillance Act of 1978 (50 U.S.C. 1821 et seq.) is amended--
            (1) in section 301 (50 U.S.C. 1821), by striking paragraph 
        (5) and inserting the following:
            ``(5) `Physical search' means any physical intrusion within 
        the United States into premises or property (including 
        examination of the interior of property by technical means) 
        that is intended to result in a seizure, reproduction, 
        inspection, or alteration of information, material, or 
        property, under circumstances in which a person has a 
        reasonable expectation of privacy and a warrant would be 
        required for law enforcement purposes, but does not include 
        activities conducted in accordance with sections 102 or 105.'';
            (2) in section 307, by striking subsection (a) and 
        inserting the following:
    ``(a) A person is guilty of an offense if he intentionally--
            ``(1) under color of law for the purpose of obtaining 
        foreign intelligence information, executes a physical search 
        within the United States except as authorized by statute or 
        under the Constitution; or
            ``(2) discloses or uses information obtained under color of 
        law by physical search within the United States, knowing or 
        having reason to know that the information was obtained through 
        physical search not authorized by statute or the 
        Constitution.''; and
            (3) by striking section 309.

SEC. 10. CONFORMING AMENDMENT TO TABLE OF CONTENTS.

    The table of contents for the Foreign Intelligence Surveillance Act 
of 1978 is amended by striking the items related to title VII and 
section 701 and inserting the following:

                  ``TITLE VII--ELECTRONIC SURVEILLANCE

``Sec. 701. Definition.
``Sec. 702. Foreign intelligence surveillance court jurisdiction to 
                            review electronic surveillance programs.
``Sec. 703. Applications for approval of electronic surveillance 
                            programs.
``Sec. 704. Approval of electronic surveillance programs.
``Sec. 705. Congressional oversight.
                   ``TITLE VIII--EXECUTIVE AUTHORITY

``Sec. 801. Executive authority.''.
                                                       Calendar No. 599

109th CONGRESS

  2d Session

                                S. 3876

_______________________________________________________________________

                                 A BILL

            Entitled The National Security Surveillance Act.

_______________________________________________________________________

                           September 8, 2006

            Read the second time and placed on the calendar`