II 

109TH CONGRESS 

2D SESSION S. 3931 

To establish procedures for the review of electronic surveillance programs. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 22, 2006 

Mr. MCCONNELL (for himself and Mr. FRIST) introduced the following bill; 

which was read the first time pursuant to the order of September 21, 

2006, as modified on September 22, 2006 

A BILL 

To establish procedures for the review of electronic 

surveillance programs. 

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 ‘‘Terrorist Surveillance 

5 Act of 2006’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds the following: 

8 (1) After the terrorist attacks of September 11, 

9 2001, President Bush authorized the National Secu10 rity Agency to intercept communications between 


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1 people inside the United States, including American 

2 citizens, and terrorism suspects overseas. 

3 (2) One of the lessons learned from September 

4 11, 2001, is that the enemies who seek to greatly 

5 harm and terrorize our Nation utilize technologies 

6 and techniques that defy conventional law enforce7 ment practices. 

8 (3) The President, as the constitutional officer 

9 most directly responsible for protecting the United 

10 States from attack, requires the ability and means 

11 to detect and track an enemy that can master and 

12 exploit modern technology. 

13 (4) It is equally essential, however, that in pro14 tecting the United States against our enemies, the 

15 President does not compromise the very civil lib16 erties that he seeks to safeguard. As Justice Hugo 

17 Black observed, ‘‘The President’s power, if any, to 

18 issue [an] order must stem either from an Act of 

19 Congress or from the Constitution itself.’’ Youngs20 town Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 

21 585 (1952) (opinion by Black, J.). Similarly, in 

22 2004, Justice Sandra Day O’Connor explained in 

23 her plurality opinion for the Supreme Court in 

24 Hamdi v. Rumsfeld: ‘‘We have long since made clear 

25 that a state of war is not a blank check for the 


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1 President when it comes to the rights of the Na2 tion’s citizens.’’ Hamdi v. Rumsfeld, 542 U.S. 507, 

3 536 (2004) (citations omitted). 

4 (5) When deciding issues of national security, it 

5 is in our Nation’s best interest that, to the extent 

6 feasible, all 3 branches of the Federal Government 

7 should be involved. This helps guarantee that elec8 tronic surveillance programs do not infringe on the 

9 constitutional rights of Americans, while at the same 

10 time ensuring that the President has all the powers 

11 and means necessary to detect and track our en12 emies and protect our Nation from attack. 

13 (6) As Justice Sandra Day O’Connor explained 

14 in her plurality opinion for the Supreme Court in 

15 Hamdi v. Rumsfeld, ‘‘Whatever power the United 

16 States Constitution envisions for the Executive in its 

17 exchanges with other nations or with enemy organi18 zations in times of conflict, it most assuredly envi19 sions a role for all 3 branches when individual lib20 erties are at stake.’’ Hamdi v. Rumsfeld, 542 U.S. 

21 507, 536 (2004) (citations omitted). 

22 (7) Similarly, Justice Jackson famously ex23 plained in his Youngstown concurrence: ‘‘When the 

24 President acts pursuant to an express or implied au25 thorization of Congress, his authority is at its maxVerDate Aug 31 2005 01:21 Sep 23, 2006 Jkt 049200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S3931.IS S3931

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1 imum, for it includes all that he possesses in his own 

2 right plus all that Congress can delegate ... When 

3 the President acts in absence of either a congres4 sional grant or denial of authority, he can only rely 

5 upon his own independent powers, but there is a 

6 zone of twilight in which he and Congress may have 

7 concurrent authority, or in which its distribution is 

8 uncertain. Therefore, congressional inertia, indiffer9 ence or quiescence may sometimes, at least as a 

10 practical matter, enable, if not invite, measures on 

11 independent presidential responsibility ... When the 

12 President takes measures incompatible with the ex13 pressed or implied will of Congress, his power is at 

14 its lowest ebb, for then he can rely only upon his 

15 own constitutional powers minus any constitutional 

16 powers of Congress over the matter. Courts can sus17 tain exclusive Presidential control in such a case 

18 only by disabling the Congress from acting upon the 

19 subject.’’ Youngstown Sheet & Tube Co. v. Sawyer, 

20 343 U.S. 579, 635–38 (1952) (Jackson, J., concur21 ring). 

22 (8) Congress clearly has the authority to enact 

23 legislation with respect to electronic surveillance pro24 grams. The Constitution provides Congress with 

25 broad powers of oversight over national security and 


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1 stitution of the United States, which confers on Con2 gress numerous powers, including the powers— 

3 (A) ‘‘To declare War, grant Letters of 

4 Marque and Reprisal, and make Rules con5 cerning Captures on Land and Water’’; 

6 (B) ‘‘To raise and support Armies’’; 

7 (C) ‘‘To provide and maintain a Navy’’; 

8 (D) ‘‘To make Rules for the Government 

9 and Regulation of the land and naval Forces’’; 

10 (E) ‘‘To provide for calling forth the Mili11 tia to execute the Laws of the Union, suppress 

12 Insurrections and repel Invasions’’; and 

13 (F) ‘‘To provide for organizing, arming, 

14 and disciplining the Militia, and for governing 

15 such Part of them as may be employed in the 

16 Service of the United States’’. 

17 (9) While Attorney General Alberto Gonzales 

18 explained that the executive branch reviews the elec19 tronic surveillance program of the National Security 

20 Agency every 45 days to ensure that the program is 

21 not overly broad, it is the belief of Congress that ap22 proval and supervision of electronic surveillance pro23 grams should be conducted outside of the executive 

24 branch, by the article III court established under 

25 section 103 of the Foreign Intelligence Surveillance 


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1 Act of 1978 (50 U.S.C. 1803) and the congressional 

2 intelligence committees. It is also the belief of Con3 gress that it is appropriate for an article III court 

4 to pass upon the constitutionality of electronic sur5 veillance programs that may be directed at Ameri6 cans. 

7 (10) The Foreign Intelligence Surveillance 

8 Court is the proper court to approve and supervise 

9 classified electronic surveillance programs because it 

10 is adept at maintaining the secrecy with which it 

11 was charged and it possesses the requisite expertise 

12 and discretion for adjudicating sensitive issues of 

13 national security. 

14 (11) In 1975, [then] Attorney General Edward 

15 Levi, a strong defender of executive authority, testi16 fied that in times of conflict, the President needs the 

17 power to conduct long-range electronic surveillance 

18 and that a foreign intelligence surveillance court 

19 should be empowered to issue special approval orders 

20 in these circumstances. 

21 (12) Granting the Foreign Intelligence Surveil22 lance Court the authority to review electronic sur23 veillance programs and pass upon their constitu24 tionality is consistent with well-established, long25 standing practices. 


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1 (13) The Foreign Intelligence Surveillance 

2 Court already has broad authority to approve sur3 veillance of members of international conspiracies, in 

4 addition to granting warrants for surveillance of a 

5 particular individual under sections 104, 105, and 

6 402 of the Foreign Intelligence Surveillance Act of 

7 1978 (50 U.S.C. 1804, 1805, and 1842). 

8 (14) Prosecutors have significant flexibility in 

9 investigating domestic conspiracy cases. Courts have 

10 held that flexible warrants comply with the 4th 

11 amendment to the Constitution of the United States 

12 when they relate to complex, far-reaching, and 

13 multifaceted criminal enterprises like drug conspir14 acies and money laundering rings. The courts recog15 nize that applications for search warrants must be 

16 judged in a common sense and realistic fashion, and 

17 the courts permit broad warrant language where, 

18 due to the nature and circumstances of the inves19 tigation and the criminal organization, more precise 

20 descriptions are not feasible. 

21 (15) The Supreme Court, in the ‘‘Keith Case’’, 

22 United States v. United States District Court for 

23 the Eastern District of Michigan, 407 U.S. 297 

24 (1972), recognized that the standards and proce25 dures used to fight ordinary crime may not be appliVerDate Aug 31 2005 01:21 Sep 23, 2006 Jkt 049200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S3931.IS S3931

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1 cable to cases involving national security. The Court 

2 recognized that national ‘‘security surveillance may 

3 involve different policy and practical considerations 

4 from the surveillance of ordinary crime’’ and that 

5 courts should be more flexible in issuing warrants in 

6 national security cases. United States v. United 

7 States District Court for the Eastern District of 

8 Michigan, 407 U.S. 297, 322 (1972). 

9 (16) By authorizing the Foreign Intelligence 

10 Surveillance Court to review electronic surveillance 

11 programs, Congress enables the President to use the 

12 necessary means to guard our national security, 

13 while also protecting the civil liberties and constitu14 tional rights that we cherish. 

15 SEC. 3. DEFINITIONS. 

16 The Foreign Intelligence Surveillance Act of 1978 

17 (50 U.S.C. 1801 et seq.) is amended— 

18 (1) by redesignating title VII as title VIII; 

19 (2) by redesignating section 701 as section 801; 

20 and 

21 (3) by inserting after title VI the following: 

22 ‘‘TITLE VII—ELECTRONIC 

23 SURVEILLANCE PROGRAMS 

24 ‘‘SEC. 701. DEFINITIONS. 

25 ‘‘As used in this title— 


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1 ‘‘(1) the terms ‘agent of a foreign power’, ‘At2 torney General’, ‘contents’, ‘electronic surveillance’, 

3 ‘foreign power’, ‘international terrorism’, ‘minimiza4 tion procedures’, ‘person’, ‘United States’, and 

5 ‘United States person’ have the same meaning as in 

6 section 101; 

7 ‘‘(2) the term ‘congressional intelligence com8 mittees’ means the Select Committee on Intelligence 

9 of the Senate and the Permanent Select Committee 

10 on Intelligence of the House of Representatives; 

11 ‘‘(3) the term ‘electronic surveillance program’ 

12 means a program to engage in electronic surveil13 lance— 

14 ‘‘(A) that has as a significant purpose the 

15 gathering of foreign intelligence information or 

16 protecting against international terrorism; 

17 ‘‘(B) where it is not feasible to name every 

18 person, address, or location to be subjected to 

19 electronic surveillance; 

20 ‘‘(C) where effective gathering of foreign 

21 intelligence information requires the flexibility 

22 to begin electronic surveillance immediately 

23 after learning of suspect activity; and 


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1 ‘‘(D) where effective gathering of foreign 

2 intelligence information requires an extended 

3 period of electronic surveillance; 

4 ‘‘(4) the term ‘foreign intelligence information’ 

5 has the same meaning as in section 101(e) and in6 cludes information necessary to protect against 

7 international terrorism; 

8 ‘‘(5) the term ‘Foreign Intelligence Surveillance 

9 Court’ means the court established under section 

10 103(a); and 

11 ‘‘(6) the term ‘Foreign Intelligence Surveillance 

12 Court of Review’ means the court established under 

13 section 103(b).’’. 

14 SEC. 4. FOREIGN INTELLIGENCE SURVEILLANCE COURT 

15 JURISDICTION TO REVIEW ELECTRONIC SUR16 VEILLANCE PROGRAMS. 

17 (a) IN GENERAL.—Title VII of the Foreign Intel18 ligence Surveillance Act of 1978, as amended by section 

19 3, is amended by adding at the end the following: 

20 ‘‘SEC. 702. FOREIGN INTELLIGENCE SURVEILLANCE COURT 

21 JURISDICTION TO REVIEW ELECTRONIC SUR22 VEILLANCE PROGRAMS. 

23 ‘‘(a) AUTHORIZATION OF REVIEW.— 

24 ‘‘(1) INITIAL AUTHORIZATION.—The Foreign 

25 Intelligence Surveillance Court shall have jurisdicVerDate Aug 31 2005 01:21 Sep 23, 2006 Jkt 049200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S3931.IS S3931

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1 tion to issue an order under this title, lasting not 

2 longer than 90 days, that authorizes an electronic 

3 surveillance program to obtain foreign intelligence 

4 information or to protect against international ter5 rorism. 

6 ‘‘(2) REAUTHORIZATION.—The Foreign Intel7 ligence Surveillance Court shall have jurisdiction to 

8 reauthorize an electronic surveillance program for a 

9 period of time not longer than such court determines 

10 to be reasonable. There shall be no limit on the 

11 number of times the Attorney General may seek re12 authorization of an electronic surveillance program. 

13 ‘‘(3) RESUBMISSION OR APPEAL.—In the event 

14 that the Foreign Intelligence Surveillance Court re15 fuses to approve an application under this sub16 section, the court shall state its reasons in a written 

17 opinion, which it shall submit to the Attorney Gen18 eral. The Attorney General or his designee may sub19 mit a new application under section 703 for the elec20 tronic surveillance program, with no limit on the 

21 number of resubmissions that may be made. Alter22 natively, the Attorney General may appeal the deci23 sion of the Foreign Intelligence Surveillance Court 

24 to the Foreign Intelligence Surveillance Court of Re25 view. 


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1 ‘‘(4) CONTINUED SURVEILLANCE UNDER TITLE

2 I.— 

3 ‘‘(A) IN GENERAL.—If, at any time, the 

4 Attorney General determines that the known 

5 facts and circumstances relating to any target 

6 within the United States under this title satisfy 

7 the criteria for an application under section 104 

8 for an order for electronic surveillance of the 

9 target under section 105, the Attorney General 

10 shall— 

11 ‘‘(i) discontinue the surveillance of the 

12 target under this title; or 

13 ‘‘(ii) continue the surveillance of the 

14 target under this title, subject to the re15 quirements of subparagraph (B). 

16 ‘‘(B) CONTINUATION OF SURVEILLANCE.— 

17 ‘‘(i) IN GENERAL.—The Attorney 

18 General may continue surveillance of a tar19 get under this title as specified in subpara20 graph (A)(ii) only if the Attorney General 

21 makes an application under section 104 for 

22 an order for electronic surveillance of the 

23 target under section 105 as soon as the 

24 Attorney General determines practicable 

25 after the date on which the Attorney GenVerDate Aug 31 2005 01:21 Sep 23, 2006 Jkt 049200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S3931.IS S3931

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1 eral makes the determination to continue 

2 surveillance of the target under subpara3 graph (A)(ii). 

4 ‘‘(ii) PERIOD.—The period during 

5 which the Attorney General may continue 

6 surveillance of a target under this title 

7 after the Attorney General has determined 

8 that making an application is practicable 

9 shall be limited to a reasonable period, as 

10 determined by the Attorney General, dur11 ing which the application is prepared and 

12 the period during which the application of 

13 the Attorney General under section 104 for 

14 an order for electronic surveillance of the 

15 target under section 105 is pending under 

16 title I, including during any period in 

17 which appeal from the denial of the appli18 cation is pending with the Foreign Intel19 ligence Surveillance Court of Review or the 

20 Supreme Court under section 103(b). 

21 ‘‘(b) MANDATORY TRANSFER FOR REVIEW.— 

22 ‘‘(1) IN GENERAL.—In any case before any 

23 court challenging the legality of classified commu24 nications intelligence activity relating to a foreign 

25 threat, including an electronic surveillance program, 


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1 or in which the legality of any such activity or pro2 gram is in issue, if the Attorney General files an af3 fidavit under oath that the case should be trans4 ferred to the Foreign Intelligence Surveillance Court 

5 of Review because further proceedings in the origi6 nating court would harm the national security of the 

7 United States, the originating court shall transfer 

8 the case of the Foreign Intelligence Surveillance for 

9 further proceedings under this subsection. 

10 ‘‘(2) PROCEDURES FOR REVIEW.—The Foreign 

11 Intelligence Surveillance Court shall have jurisdic12 tion as appropriate to determine standing and the 

13 legality of the program to the extent necessary for 

14 resolution of the underlying case. All proceedings 

15 under this paragraph shall be conducted in accord16 ance with the procedures set forth in section 106(f). 

17 In the event the Foreign Intelligence Surveillance 

18 Court determines that, in the context of a criminal 

19 proceeding, the Constitution of the United States 

20 would require the disclosure of national security in21 formation, any such constitutionally required disclo22 sure shall be governed by the Classified Information 

23 Procedures Act, (18 U.S.C. App.), or if applicable, 

24 section 2339B(f) of title 18, United States Code. 


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1 ‘‘(3) APPEAL, CERTIORARI, AND EFFECTS OF

2 DECISIONS.—The decision of the Foreign Intel3 ligence Surveillance Court made under paragraphs 

4 (1) and (2), including a decision that the disclosure 

5 of national security information is constitutionally 

6 required, shall be subject to review by the Foreign 

7 Intelligence Surveillance Court of Review under sec8 tion 103(b). The Supreme Court of the United 

9 States shall have jurisdiction to review decisions of 

10 the Foreign Intelligence Surveillance Court of Re11 view by writ of certiorari granted upon the petition 

12 of the United States. The decision by the Foreign 

13 Intelligence Surveillance Court shall otherwise be 

14 binding in all other courts. 

15 ‘‘(4) DISMISSAL.—The Foreign Intelligence 

16 Surveillance Court or a court that is an originating 

17 court under paragraph (1) may dismiss a challenge 

18 to the legality of an electronic surveillance program 

19 for any reason provided for under law. 

20 ‘‘(5) PRESERVATION OF LITIGATION PRIVI21 LEGES.—Nothing in this Act shall be construed to 

22 abrogate, limit, or affect any litigation privileges in 

23 any court.’’. 


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1 SEC. 5. APPLICATIONS FOR APPROVAL OF ELECTRONIC 

2 SURVEILLANCE PROGRAMS. 

3 Title VII of the Foreign Intelligence Surveillance Act 

4 of 1978, as amended by section 4, is amended by adding 

5 at the end the following: 

6 ‘‘SEC. 703. APPLICATIONS FOR APPROVAL OF ELECTRONIC 

7 SURVEILLANCE PROGRAMS. 

8 ‘‘(a) IN GENERAL.—Each application for approval of 

9 an electronic surveillance program under this title (includ10 ing resubmission or application for reauthorization) 

11 shall— 

12 ‘‘(1) be made by the Attorney General or his 

13 designee; 

14 ‘‘(2) include a statement of the authority con15 ferred on the Attorney General by the President of 

16 the United States; 

17 ‘‘(3) include a statement setting forth the legal 

18 basis for the conclusion by the Attorney General 

19 that the electronic surveillance program is consistent 

20 with the Constitution of the United States; 

21 ‘‘(4) certify that a significant purpose of the 

22 electronic surveillance program is to obtain foreign 

23 intelligence information or to protect against inter24 national terrorism; 


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1 ‘‘(5) certify that the information sought cannot 

2 reasonably be obtained by normal investigative tech3 niques 

4 ‘‘(6) certify that the information sought cannot 

5 reasonably be obtained through an application under 

6 section 104; 

7 ‘‘(7) include a statement of the means and 

8 operational procedures by which the electronic sur9 veillance will be executed and effected; 

10 ‘‘(8) include an explanation of how the elec11 tronic surveillance program is reasonably designed to 

12 ensure that the communications that are acquired 

13 are communications of or with— 

14 ‘‘(A) a foreign power that engages in inter15 national terrorism or activities in preparation 

16 therefor; 

17 ‘‘(B) an agent of a foreign power that en18 gages in international terrorism or activities in 

19 preparation therefor; 

20 ‘‘(C) a person reasonably believed to have 

21 communication with or be associated with a for22 eign power that engages in international ter23 rorism or activities in preparation therefor or 

24 an agent of a foreign power that engages in 


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1 international terrorism or activities in prepara2 tion therefor; or 

3 ‘‘(D) a foreign power that poses an immi4 nent threat of attack likely to cause death, seri5 ous injury, or substantial economic damage to 

6 the United States, or an agent of a foreign 

7 power thereof; 

8 ‘‘(9) include a statement of the proposed mini9 mization procedures; 

10 ‘‘(10) if the electronic surveillance program that 

11 is the subject of the application was initiated prior 

12 to the date the application was submitted, specify 

13 the date that the program was initiated; 

14 ‘‘(11) include a description of all previous appli15 cations that have been made under this title involv16 ing the electronic surveillance program in the appli17 cation (including the minimization procedures and 

18 the means and operational procedures proposed) and 

19 the decision on each previous application; and 

20 ‘‘(12) include a statement of facts concerning 

21 the implementation of the electronic surveillance pro22 gram described in the application, including, for any 

23 period of operation of the program authorized not 

24 less than 90 days prior to the date of submission of 

25 the application— 


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1 ‘‘(A) the minimization procedures imple2 mented; and 

3 ‘‘(B) the means and operational procedures 

4 by which the electronic surveillance was exe5 cuted and effected. 

6 ‘‘(b) ADDITIONAL INFORMATION.—The Foreign In7 telligence Surveillance Court may require the Attorney 

8 General to furnish such other information as may be nec9 essary to make a determination under section 704.’’. 

10 SEC. 6. APPROVAL OF ELECTRONIC SURVEILLANCE PRO11 GRAMS. 

12 Title VII of the Foreign Intelligence Surveillance Act 

13 18 of 1978, as amended by section 5, is amended by add14 ing at the end the following: 

15 ‘‘SEC. 704. APPROVAL OF ELECTRONIC SURVEILLANCE 

16 PROGRAMS. 

17 ‘‘(a) NECESSARY FINDINGS.—Upon receipt of an ap18 plication under section 703, the Foreign Intelligence Sur19 veillance Court shall enter an ex parte order as requested, 

20 or as modified, approving the electronic surveillance pro21 gram if it finds that— 

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

23 General to make the application for electronic sur24 veillance for foreign intelligence information or to 

25 protect against international terrorism; 


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1 ‘‘(2) approval of the electronic surveillance pro2 gram in the application is consistent with the Con3 stitution of the United States; 

4 ‘‘(3) the electronic surveillance program is rea5 sonably designed to ensure that the communications 

6 that are acquired are communications of or with— 

7 ‘‘(A) a foreign power that engages in inter8 national terrorism or activities in preparation 

9 therefor; 

10 ‘‘(B) an agent of a foreign power that is 

11 engaged in international terrorism or activities 

12 in preparation therefor; 

13 ‘‘(C) a person reasonably believed to have 

14 communication with or be associated with a for15 eign power that is engaged in international ter16 rorism or activities in preparation therefor or 

17 an agent of a foreign power that is engaged in 

18 international terrorism or activities in prepara19 tion therefor; or 

20 ‘‘(D) a foreign power that poses an immi21 nent threat of attack likely to cause death, seri22 ous injury, or substantial economic damage to 

23 the United States, or an agent of a foreign 

24 power thereof; 


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1 ‘‘(4) the proposed minimization procedures 

2 meet the definition of minimization procedures 

3 under section 101(h); and 

4 ‘‘(5) the application contains all statements and 

5 certifications required by section 703. 

6 ‘‘(b) CONSIDERATIONS.—In considering the constitu7 tionality of the electronic surveillance program under sub8 section (a), the Foreign Intelligence Surveillance Court 

9 may consider— 

10 ‘‘(1) whether the electronic surveillance pro11 gram has been implemented in accordance with the 

12 proposal by the Attorney General, by comparing— 

13 ‘‘(A) the minimization procedures proposed 

14 with the minimization procedures actually im15 plemented; 

16 ‘‘(B) the nature of the information sought 

17 with the nature of the information actually ob18 tained; and 

19 ‘‘(C) the means and operational procedures 

20 proposed with the means and operational proce21 dures actually implemented; and 

22 ‘‘(2) whether foreign intelligence information 

23 has been obtained through the electronic surveillance 

24 program. 


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1 ‘‘(c) CONTENTS OF ORDER.—An order approving an 

2 electronic surveillance program under this section shall di3 rect— 

4 ‘‘(1) that the minimization procedures be fol5 lowed; 

6 ‘‘(2) that, upon the request of the applicant, 

7 specified communication or other common carriers, 

8 landlords, custodians, or other specified persons, fur9 nish the applicant forthwith with all information, fa10 cilities, or technical assistance necessary to under11 take the electronic surveillance program in such a 

12 manner as will protect its secrecy and produce a 

13 minimum of interference with the services that such 

14 carriers, landlords, custodians, or other persons are 

15 providing potential targets of the electronic surveil16 lance program; 

17 ‘‘(3) that any records concerning the electronic 

18 surveillance program or the aid furnished or retained 

19 by such carriers, landlords, custodians, or other per20 sons are maintained under security procedures ap21 proved by the Attorney General and the Director of 

22 National Intelligence; and 

23 ‘‘(4) that the applicant compensate, at the pre24 vailing rate, such carriers, landlords, custodians, or 

25 other persons for furnishing such aid.’’. 


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1 SEC. 7. CONGRESSIONAL OVERSIGHT. 

2 Title VII of the Foreign Intelligence Surveillance Act 

3 of 1978, as amended by section 6, is amended by adding 

4 at the end the following: 

5 ‘‘SEC. 705. CONGRESSIONAL OVERSIGHT. 

6 ‘‘(a) IN GENERAL.—Not less often than every 180 

7 days, the Attorney General shall submit to the congres8 sional intelligence committees a report in classified form 

9 on the activities during the previous 180-day period under 

10 any electronic surveillance program authorized under this 

11 title. 

12 ‘‘(b) CONTENTS.—Each report submitted under sub13 section (a) shall provide, with respect to the previous 180- 

14 day period, a description of— 

15 ‘‘(1) the minimization procedures implemented; 

16 ‘‘(2) the means and operational procedures by 

17 which the electronic surveillance program was exe18 cuted and effected; 

19 ‘‘(3) significant decisions of the Foreign Intel20 ligence Surveillance Court on applications made 

21 under section 703; 

22 ‘‘(4) the total number of applications made for 

23 orders approving electronic surveillance programs 

24 pursuant to this title; and 

25 ‘‘(5) the total number of orders applied for that 

26 have been granted, modified, or denied. 


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1 ‘‘(c) RULE OF CONSTRUCTION.—Nothing in this title 

2 shall be construed to limit the authority or responsibility 

3 of any committee of either House of Congress to obtain 

4 such information as such committee may need to carry 

5 out its respective functions and duties.’’. 

6 SEC. 8. CLARIFICATION OF THE FOREIGN INTELLIGENCE 

7 SURVEILLANCE ACT OF 1978. 

8 (a) REPEAL.—Sections 111, 309, and 404 of the 

9 Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 

10 1811, 1829, and 1844) are repealed. 

11 (b) CLARIFYING AMENDMENTS.— 

12 (1) TITLE 18.—Section 2511(2) of title 18, 

13 United States Code, is amended— 

14 (A) in paragraph (e), by striking ‘‘, as de15 fined in section 101’’ and all that follows 

16 through the end of the paragraph and inserting 

17 the following: ‘‘under the Constitution or the 

18 Foreign Intelligence Surveillance Act of 1978.’’; 

19 and 

20 (B) in paragraph (f), by striking ‘‘from 

21 international or foreign communications,’’ and 

22 all that follows through the end of the para23 graph and inserting ‘‘that is authorized under 

24 a Federal statute or the Constitution of the 

25 United States.’’. 


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1 (2) FISA.—Section 109 of the Foreign Intel2 ligence Surveillance Act of 1978 (50 U.S.C. 1809) 

3 is amended— 

4 (A) in subsection (a)— 

5 (i) in paragraph (1)— 

6 (I) by striking ‘‘authorized by 

7 statute’’ and inserting ‘‘authorized by 

8 law’’; and 

9 (II) by striking ‘‘or’’ at the end; 

10 (ii) in paragraph (2)— 

11 (I) by striking ‘‘authorized by 

12 statute’’ and inserting ‘‘authorized by 

13 law’’; and 

14 (II) by striking the period and 

15 inserting ‘‘; or’’; and 

16 (iii) by adding at the end the fol17 lowing: 

18 ‘‘(3) and knowingly discloses or uses informa19 tion obtained under color of law by electronic sur20 veillance in a manner or for a purpose not author21 ized by law.’’; and 

22 (B) in subsection (c)— 

23 (i) by striking ‘‘$10,000’’ and insert24 ing ‘‘$100,000’’; and 


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1 (ii) by striking ‘‘five years’’ and in2 serting ‘‘15 years’’. 

3 SEC. 9. MODERNIZING AMENDMENTS TO FISA. 

4 (a) REFERENCE.—In this section, a reference to 

5 ‘‘FISA’’ shall mean the Foreign Intelligence Surveillance 

6 Act of 1978 (50 U.S.C. 1801 et seq.). 

7 (b) DEFINITIONS.—Section 101 of FISA (50 U.S.C. 

8 1801) is amended— 

9 (1) in subsection (b)(1)— 

10 (A) in subparagraph (C), by striking ‘‘or’’ 

11 after the semicolon; and 

12 (B) by adding at the end the following: 

13 ‘‘(D) otherwise is reasonably expected to 

14 possess, control, transmit, or receive foreign in15 telligence information while that person is in 

16 the United States, provided that the official 

17 making the certification required by section 

18 104(a)(6) deems such foreign intelligence infor19 mation to be significant; or’’; 

20 (2) by striking subsection (f) and inserting the 

21 following: 

22 ‘‘(f) ‘Electronic surveillance’ means— 

23 ‘‘(1) the installation or use of an electronic, me24 chanical, or other surveillance device for acquiring 

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1 lance at a particular known person who is reason2 ably believed to be in the United States under cir3 cumstances in which that person has a reasonable 

4 expectation of privacy and a warrant would be re5 quired for law enforcement purposes; or 

6 ‘‘(2) the intentional acquisition of the contents 

7 of any communication under circumstances in which 

8 a person has a reasonable expectation of privacy and 

9 a warrant would be required for law enforcement 

10 purposes, and if both the sender and all intended re11 cipients are reasonably believed to be located within 

12 the United States.’’; 

13 (3) in subsection (h), by striking paragraph (4) 

14 and inserting the following: 

15 ‘‘(4) notwithstanding paragraphs (1), (2), and 

16 (3), with respect to any electronic surveillance ap17 proved pursuant to section 102 or 704, procedures 

18 that require that no contents of any communication 

19 originated or sent by a United States person shall 

20 be disclosed, disseminated, used or retained for 

21 longer than 7 days unless a court order under sec22 tion 105 is obtained or unless the Attorney General 

23 determines that the information indicates a threat of 

24 death or serious bodily harm to any person.’’. 

25 (4) by striking subsection (l); and 


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1 (5) by striking subsection (n) and inserting the 

2 following: 

3 ‘‘(n) ‘contents’, when used with respect to a commu4 nication, includes any information concerning the sub5 stance, symbols, sounds, words, purport, or meaning of a 

6 communication, and does not include dialing, routing, ad7 dressing, or signaling information.’’. 

8 (c) ELECTRONIC SURVEILLANCE AUTHORIZATION.— 

9 Section 102 of FISA (50 U.S.C. 1802) is amended to read 

10 as follows: 

11 ‘‘ELECTRONIC SURVEILLANCE AUTHORIZATION WITHOUT

12 COURT ORDER; CERTIFICATION BY ATTORNEY GEN13 ERAL; REPORTS TO CONGRESSIONAL COMMITTEES; 

14 TRANSMITTAL UNDER SEAL; DUTIES AND COM15 PENSATION OF COMMUNICATION COMMON CARRIER; 

16 APPLICATIONS; JURISDICTION OF COURT

17 ‘‘SEC. 102. (a)(1) Notwithstanding any other law, the 

18 President through the Attorney General, may authorize 

19 electronic surveillance without a court order under this 

20 title to acquire foreign intelligence information for periods 

21 of up to 1 year if the Attorney General certifies in writing 

22 under oath that the electronic surveillance is directed at— 

23 ‘‘(A)(i) the acquisition of the contents of com24 munications of foreign powers, as defined in para25 graph (1), (2), or (3) of section 101(a), or a person 

26 other than a United States person acting as an 


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•S 3931 IS

1 agent of a foreign power, as defined in section 

2 101(b)(1)(A) or (B); or 

3 ‘‘(ii) the acquisition of technical intelligence, 

4 other than the spoken communications of individ5 uals, from property or premises under the open and 

6 exclusive control of a foreign power, as defined in 

7 paragraph (1), (2), or (3) of section 101(a); and 

8 ‘‘(B) the proposed minimization procedures 

9 with respect to such surveillance meet the definition 

10 of minimization procedures under section 101(h); 

11 if the Attorney General reports such minimization proce12 dures and any changes thereto to the Select Committee 

13 on Intelligence of the Senate and the Permanent Select 

14 Committee on Intelligence of the House of Representatives 

15 at least 30 days prior to their effective date, unless the 

16 Attorney General determines immediate action is required 

17 and notifies the committees immediately of such minimiza18 tion procedures and the reason for their becoming effective 

19 immediately. 

20 ‘‘(2) An electronic surveillance authorized by this 

21 subsection may be conducted only in accordance with the 

22 Attorney General’s certification and the minimization pro23 cedures. The Attorney General shall assess compliance 

24 with such procedures and shall report such assessments 

25 to the Select Committee on Intelligence of the Senate and 


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1 the Permanent Select Committee on Intelligence of the 

2 House of Representatives under section 108(a). If an elec3 tronic surveillance authorized by this subsection is di4 rected at an agent of a foreign power, the Attorney Gen5 eral’s report assessing compliance with the minimization 

6 procedures shall also include a statement of the facts and 

7 circumstances relied upon to justify the belief that the tar8 get of the electronic surveillance is an agent of a foreign 

9 power. 

10 ‘‘(3) The Attorney General shall immediately trans11 mit under seal to the court established under section 

12 103(a) a copy of any certification under this subsection. 

13 Such certification shall be maintained under security 

14 measures established by the Chief Justice with the concur15 rence of the Attorney General, in consultation with the 

16 Director of National Intelligence, and shall remain sealed 

17 unless— 

18 ‘‘(A) an application for a court order with re19 spect to the surveillance is made under section 104; 

20 or 

21 ‘‘(B) the certification is necessary to determine 

22 the legality of the surveillance under section 106(f). 

23 ‘‘(b)(1) Notwithstanding any other provision of law, 

24 the President, through the Attorney General, may author25 ize the acquisition of foreign intelligence information for 


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•S 3931 IS

1 periods of up to 1 year concerning a person reasonably 

2 believed to be outside the United States if the Attorney 

3 General certifies in writing under oath that he has deter4 mined that— 

5 ‘‘(A) the acquisition does not constitute elec6 tronic surveillance as defined in section 101(f); 

7 ‘‘(B) the acquisition involves obtaining the for8 eign intelligence information from or with the assist9 ance of a wire or electronic communications service 

10 provider, custodian, or other person (including any 

11 officer, employee, agent, or other specified person 

12 thereof) who has access to wire or electronic commu13 nications, either as they are transmitted or while 

14 they are stored, or equipment that is being or may 

15 be used to transmit or store such communications; 

16 ‘‘(C) a significant purpose of the acquisition is 

17 to obtain foreign intelligence information; and 

18 ‘‘(D) the minimization procedures to be em19 ployed with respect to such acquisition activity meet 

20 the definition of minimization procedures under sec21 tion 101(h). 

22 ‘‘(2) Such certification need not identify the specific 

23 facilities, places, premises, or property at which the acqui24 sition will be directed. 


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1 ‘‘(3) An acquisition undertaken pursuant to this sub2 section may be conducted only in accordance with the At3 torney General’s certification and the minimization proce4 dures adopted by the Attorney General. The Attorney 

5 General shall assess compliance with such procedures and 

6 shall report such assessments to the Select Committee on 

7 Intelligence of the Senate and the Permanent Select Com8 mittee on Intelligence of the House of Representatives 

9 under section 108(a). 

10 ‘‘(4) The Attorney General shall immediately trans11 mit under seal to the court established under section 

12 103(a) a copy of any certification of the Attorney General 

13 under this subsection. Such certification shall be main14 tained under security measures established by the Chief 

15 Justice with the concurrence of the Attorney General, in 

16 consultation with the Director of National Intelligence, 

17 and shall remain sealed unless the certification is nec18 essary to determine the legality of the acquisition under 

19 subsection (o). 

20 ‘‘(c) With respect to the acquisition authorized under 

21 this section, the Attorney General may direct a specified 

22 person to— 

23 ‘‘(1) furnish the government forthwith all infor24 mation, facilities, and assistance necessary to accom25 plish the acquisition in such a manner as will protect 


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•S 3931 IS

1 its secrecy and produce a minimum of interference 

2 with the services that such person is providing to the 

3 target; and 

4 ‘‘(2) maintain under security procedures ap5 proved by the Attorney General and the Director of 

6 National Intelligence any records concerning the ac7 quisition or the aid furnished that such person wish8 es to maintain. 

9 ‘‘(d) The government shall compensate, at the pre10 vailing rate, such specified person for furnishing the aid 

11 set forth in subsection (c). 

12 ‘‘(e) In the case of a failure to comply with a directive 

13 issued pursuant to this section, the Attorney General may 

14 invoke the aid of the court established under section 

15 103(a) to compel compliance with the directive. The court 

16 shall issue an order requiring the person or entity to com17 ply with the directive forthwith if it finds that the directive 

18 was issued in accordance with subsection (a) or (b) and 

19 is otherwise lawful. Any failure to obey the order of the 

20 court may be punished by the court as contempt thereof. 

21 Any process under this section may be served in any judi22 cial district in which the person or entity may be found. 

23 ‘‘(f)(1)(A) A person receiving an Attorney General di24 rective issued pursuant to this section may challenge the 


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1 legality of that directive by filing a petition with the pool 

2 established by section 103(e)(1). 

3 ‘‘(B) The presiding judge shall immediately assign a 

4 petition to one of the judges serving in the pool established 

5 by section 103(e)(1). Not later than 24 hours after the 

6 assignment of such petition, the assigned judge shall con7 duct an initial review of the directive. If the assigned judge 

8 determines that the petition is frivolous, the assigned 

9 judge shall immediately deny the petition and affirm the 

10 directive or any part thereof that is the subject of the peti11 tion. If the assigned judge determines the petition is not 

12 frivolous, the assigned judge shall within 72 hours con13 sider the petition in accordance with the procedures estab14 lished under section 103(e)(2) and provide a written state15 ment for the record of the reasons for any determination 

16 under this subsection. 

17 ‘‘(2) A judge considering a petition to modify or set 

18 aside a directive may grant such petition only if the judge 

19 finds that such directive does not meet the requirements 

20 of this section or is otherwise unlawful. If the judge does 

21 not modify or set aside the directive, the judge shall imme22 diately affirm such directive, and order the recipient to 

23 comply therewith. 

24 ‘‘(3) Any directive not explicitly modified or set aside 

25 consistent with this subsection shall remain in full effect. 


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1 ‘‘(g) A petition for review of a decision under sub2 section (f) to affirm, modify, or set aside a directive by 

3 the Government or any person receiving such directive 

4 shall be made within 7 days of issuance of the decision 

5 required by subsection (f) to the court of review estab6 lished under section 103(b), which shall have jurisdiction 

7 to consider such petitions. The court of review shall pro8 vide for the record a written statement of the reasons for 

9 its decision and, on petition by the Government or any 

10 person receiving such directive for a writ of certiorari, the 

11 record shall be transmitted under seal to the Supreme 

12 Court of the United States, which shall have jurisdiction 

13 to review such decision. 

14 ‘‘(h) Judicial proceedings under this section shall be 

15 concluded as expeditiously as possible. The record of pro16 ceedings, including petitions filed, orders granted, and 

17 statements of reasons for decision, shall be maintained 

18 under security measures established by the Chief Justice 

19 of the United States, in consultation with the Attorney 

20 General and the Director of National Intelligence. 

21 ‘‘(i) All petitions under this section shall be filed 

22 under seal. In any proceedings under this section, the 

23 court shall, upon request of the Government, review ex 

24 parte and in camera any Government submission, or por25 tions thereof, which may include classified information. 


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1 ‘‘(j) No cause of action shall lie in any court against 

2 any provider of a communication service or other person 

3 (including any officer, employee, agent, or other specified 

4 person thereof) for furnishing any information, facilities, 

5 or assistance in accordance with a directive under sub6 section (a) or (b). 

7 ‘‘(k) Information acquired pursuant to an Attorney 

8 General authorization under this section concerning any 

9 United States person may be used and disclosed by Fed10 eral officers and employees without the consent of the 

11 United States person only in accordance with the mini12 mization procedures required by subsection (a) or (b), as 

13 applicable. No otherwise privileged communication ob14 tained in accordance with, or in violation of, the provisions 

15 of this section shall lose its privileged character. No infor16 mation from an acquisition under this section may be used 

17 or disclosed by Federal officers or employees except for 

18 lawful purposes. 

19 ‘‘(l) No information acquired pursuant to this section 

20 shall be disclosed for law enforcement purposes unless 

21 such disclosure is accompanied by a statement that such 

22 information, or any information derived therefrom, may 

23 only be used in a criminal proceeding with the advance 

24 authorization of the Attorney General. 


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•S 3931 IS

1 ‘‘(m) Whenever the Government intends to enter into 

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

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

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

5 United States, against an aggrieved person, any informa6 tion obtained or derived from an acquisition under this 

7 section, the Government shall, prior to the trial, hearing, 

8 or other proceeding or at a reasonable time prior to an 

9 effort to so disclose or so use that information or submit 

10 it in evidence, notify the aggrieved person and the court 

11 or other authority in which the information is to be dis12 closed or used that the Government intends to so disclose 

13 or so use such information. 

14 ‘‘(n) Whenever any State or political subdivision 

15 thereof intends to enter into evidence or otherwise use or 

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

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

18 body, or other authority of a State or a political subdivi19 sion thereof, against an aggrieved person any information 

20 obtained or derived from an acquisition under this section, 

21 the State or political subdivision thereof shall notify the 

22 aggrieved person, the court or other authority in which 

23 the information is to be disclosed or used, and the Attor24 ney General that the State or political subdivision thereof 

25 intends to so disclose or so use such information. 


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•S 3931 IS

1 ‘‘(o) Any person against whom evidence obtained or 

2 derived from an acquisition authorized pursuant to this 

3 section to which he is an aggrieved person is to be, or 

4 has been, introduced or otherwise used or disclosed in any 

5 trial, hearing, or other proceeding in or before any court, 

6 department, officer, agency, regulatory body, or other au7 thority of the United States, a State, or a political subdivi8 sion thereof, may move to suppress the evidence obtained 

9 or derived from such acquisition on the grounds that— 

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

11 or 

12 ‘‘(2) the acquisition was not made in conformity 

13 with an order of authorization or approval. 

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

15 other proceeding unless there was no opportunity to make 

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

17 of the motion. 

18 ‘‘(p) Whenever a court or other authority is notified 

19 pursuant to subsection (m) or (n), whenever a motion is 

20 made pursuant to subsection (o), or whenever any motion 

21 or request is made by an aggrieved person pursuant to 

22 any other statute or rule of the United States or any State 

23 before any court or other authority of the United States 

24 or any State to discover or obtain an Attorney General 

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1 thorized under this section or to discover, obtain, or sup2 press evidence or information obtained or derived from the 

3 acquisition authorized under this section, the United 

4 States district court or, where the motion is made before 

5 another authority, the United States district court in the 

6 same district as the authority, shall, notwithstanding any 

7 other law, if the Attorney General files an affidavit under 

8 oath that disclosure or an adversary hearing would harm 

9 the national security of the United States, review in cam10 era and ex parte the directive, and such other materials 

11 relating to the acquisition as may be necessary to deter12 mine whether the acquisition authorized under this section 

13 was lawfully authorized and conducted. In making this de14 termination, the court may disclose to the aggrieved per15 son, under appropriate security procedures and protective 

16 orders, portions of the directive or other materials relating 

17 to the acquisition only where such disclosure is necessary 

18 to make an accurate determination of the legality of the 

19 acquisition. 

20 ‘‘(q) If the United States district court pursuant to 

21 subsection (o) determines that the acquisition authorized 

22 under this section was not lawfully authorized or con23 ducted, it shall, in accordance with the requirements of 

24 law, suppress the evidence which was unlawfully obtained 

25 or derived or otherwise grant the motion of the aggrieved 


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•S 3931 IS

1 person. If the court determines that such acquisition was 

2 lawfully authorized and conducted, it shall deny the mo3 tion of the aggrieved person except to the extent that due 

4 process requires discovery or disclosure. 

5 ‘‘(r) Orders granting motions or requests under sub6 section (o), decisions under this section that an acquisition 

7 was not lawfully authorized or conducted, and orders of 

8 the United States district court requiring review or grant9 ing disclosure of directives or other materials relating to 

10 such acquisition shall be final orders and binding upon 

11 all courts of the United States and the several States ex12 cept a United States court of appeals and the Supreme 

13 Court. 

14 ‘‘(s) Federal officers who acquire foreign intelligence 

15 information under this section may consult with Federal 

16 law enforcement officers or law enforcement personnel of 

17 a State or political subdivision of a State (including the 

18 chief executive officer of that State or political subdivision 

19 who has the authority to appoint or direct the chief law 

20 enforcement officer of that State or political subdivision) 

21 to coordinate efforts to investigate or protect against— 

22 ‘‘(1) actual or potential attack or other grave 

23 hostile acts of a foreign power or an agent of a for24 eign power; 


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•S 3931 IS

1 ‘‘(2) sabotage, international terrorism, or the 

2 development or proliferation of weapons of mass de3 struction by a foreign power or an agent of a foreign 

4 power; or 

5 ‘‘(3) clandestine intelligence activities by an in6 telligence service or network of a foreign power or by 

7 an agent of a foreign power. 

8 ‘‘(t) Coordination authorized by subsection (s) shall 

9 not preclude the certification required by subsection (a) 

10 or (b), as applicable. 

11 ‘‘(u) RETENTION OF DIRECTIVES AND ORDERS.—Di12 rectives made and orders granted under this section shall 

13 be retained for a period of at least 10 years from the date 

14 when they were made.’’. 

15 (d) DESIGNATION OF JUDGES.—Section 103 of FISA 

16 (50 U.S.C. 1803) is amended— 

17 (1) in subsection (a), by inserting, ‘‘at least’’ 

18 before ‘‘seven of the United States judicial circuits’’; 

19 and 

20 (2) at the end by adding the following new sub21 section: 

22 ‘‘(g) Applications for a court order under this title 

23 are authorized if the President has, by written authoriza24 tion, empowered the Attorney General to approve applica25 tions to the court having jurisdiction under this section, 


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•S 3931 IS

1 and a judge to whom an application is made may, notwith2 standing any other law, grant an order, in conformity with 

3 section 105, approving electronic surveillance of a foreign 

4 power or an agent of a foreign power for the purpose of 

5 obtaining foreign intelligence information.’’. 

6 (e) APPLICATIONS FOR COURT ORDERS.—Section 

7 104 of FISA (50 U.S.C. 1804) is amended— 

8 (1) in subsection (a), by striking paragraphs 

9 (6) through (11) and inserting the following: 

10 ‘‘(6) a certification or certifications by the As11 sistant to the President for National Security Af12 fairs or an executive branch official authorized by 

13 the President to conduct electronic surveillance for 

14 foreign intelligence purposes— 

15 ‘‘(A) that the certifying official deems the 

16 information sought to be foreign intelligence in17 formation; 

18 ‘‘(B) that a significant purpose of the sur19 veillance is to obtain foreign intelligence infor20 mation; 

21 ‘‘(C) that such information cannot reason22 ably be obtained by normal investigative tech23 niques; and 

24 ‘‘(D) including a statement of the basis for 

25 the certification that— 


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•S 3931 IS

1 ‘‘(i) the information sought is the type 

2 of foreign intelligence information des3 ignated; and 

4 ‘‘(ii) such information cannot reason5 ably be obtained by normal investigative 

6 techniques; 

7 ‘‘(7) a statement of the period of time for which 

8 the electronic surveillance is required to be main9 tained, and if the nature of the intelligence gath10 ering is such that the approval of the use of elec11 tronic surveillance under this title should not auto12 matically terminate when the described type of infor13 mation has first been obtained, a description of facts 

14 supporting the belief that additional information of 

15 the same type will be obtained thereafter; 

16 ‘‘(8) a summary description of the nature of the 

17 information sought and the type of communications 

18 or activities to be subject to the surveillance; 

19 ‘‘(9) a summary statement of the facts con20 cerning all previous applications that have been 

21 made to any judge under this title involving any of 

22 the persons, facilities, or places specified in the ap23 plication, and the action taken on each previous ap24 plication; and 


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•S 3931 IS

1 ‘‘(10) a summary statement of the means by 

2 which the surveillance will be effected and a state3 ment whether physical entry is required to effect the 

4 surveillance.’’; 

5 (2) by striking subsection (b); 

6 (3) by redesignating subsections (c) through (e) 

7 as subsections (b) through (d), respectively; and 

8 (4) in subsection (d)(1)(A), as redesignated by 

9 paragraph (3), by inserting after ‘‘Secretary of 

10 State’’ inserting ‘‘Director of the Central Intel11 ligence Agency’’. 

12 (f) ISSUANCE OF ORDER.—Section 105 of FISA (50 

13 U.S.C. 1805) is amended— 

14 (1) in subsection (a), by— 

15 (A) striking paragraph (1); and 

16 (B) redesignating paragraphs (2) through 

17 (5) as paragraphs (1) through (4), respectively; 

18 (2) by striking paragraph (1) of subsection (c) 

19 and inserting the following: 

20 ‘‘(1) An order approving an electronic surveil21 lance under this section shall specify— 

22 ‘‘(A) the identity, if known, or a descrip23 tion of the target of the electronic surveillance 

24 identified or described in the application pursu25 ant to section 104(a)(3); 


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•S 3931 IS

1 ‘‘(B) the nature and location of each of the 

2 facilities or places at which the electronic sur3 veillance will be directed, if known; 

4 ‘‘(C) the period of time during which the 

5 electronic surveillance is approved; 

6 ‘‘(D) the type of information sought to be 

7 acquired and the type of communications or ac8 tivities to be subjected to the surveillance; and 

9 ‘‘(E) the means by which the electronic 

10 surveillance will be effected and whether phys11 ical entry will be used to effect the surveil12 lance.’’; 

13 (3) by striking subsection (d) and inserting the 

14 following: 

15 ‘‘(d) Each order under this section shall specify the 

16 type of electronic surveillance involved, including whether 

17 physical entry is required.’’; 

18 (4) by striking paragraph (2) of subsection (e) 

19 and inserting the following: 

20 ‘‘(2) Extensions of an order issued under this title 

21 may be granted on the same basis as an original order 

22 upon an application for an extension and new findings 

23 made in the same manner as required for an original order 

24 and may be for a period not longer than the court deter25 mines to be reasonable or 1 year, whichever is less.’’; 


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•S 3931 IS

1 (5) by striking subsection (f) and inserting the 

2 following: 

3 ‘‘(f)(1) Notwithstanding any other provision of this 

4 title, when an executive branch officer appointed by the 

5 President with the advice and consent of the Senate who 

6 is authorized by the President to conduct electronic sur7 veillance reasonably determines that— 

8 ‘‘(A) an emergency situation exists with respect 

9 to the employment of electronic surveillance to ob10 tain foreign intelligence information before an order 

11 authorizing such surveillance can with due diligence 

12 be obtained; and 

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

14 under this title to approve such surveillance exists; 

15 that official may authorize the emergency employment of 

16 electronic surveillance in accordance with paragraph (2). 

17 ‘‘(2) Under paragraph (1), the following require18 ments shall be satisfied: 

19 ‘‘(A) The Attorney General shall be informed of 

20 the emergency electronic surveillance. 

21 ‘‘(B) A judge having jurisdiction under section 

22 103 shall be informed by the Attorney General or 

23 his designee as soon as practicable following such 

24 authorization that the decision has been made to 

25 employ emergency electronic surveillance. 


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•S 3931 IS

1 ‘‘(C) An application in accordance with this 

2 title shall be made to that judge or another judge 

3 having jurisdiction under section 103 as soon as 

4 practicable, but not more than 7 days after such 

5 surveillance is authorized. In the absence of a judi6 cial order approving such electronic surveillance, the 

7 surveillance shall terminate when the information 

8 sought is obtained, when the application for the 

9 order is denied, or after the expiration of 7 days 

10 from the time of emergency authorization, whichever 

11 is earliest. In the event that such application for ap12 proval is denied, or in any other case where the elec13 tronic surveillance is terminated and no order is 

14 issued approving the surveillance, no information ob15 tained or evidence derived from such surveillance 

16 shall be received in evidence or otherwise disclosed 

17 in any trial, hearing, or other proceeding in or be18 fore any court, grand jury, department, office, agen19 cy, regulatory body, legislative committee, or other 

20 authority of the United States, a State, or political 

21 subdivision thereof, and no information concerning 

22 any United States person acquired from such sur23 veillance shall subsequently be used or disclosed in 

24 any other manner by Federal officers or employees 

25 without the consent of such person, except with the 


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•S 3931 IS

1 approval of the Attorney General if the information 

2 indicates a threat of death or serious bodily harm to 

3 any person. A denial of the application made under 

4 this subsection may be reviewed as provided in sec5 tion 103. 

6 ‘‘(D) The official authorizing the emergency 

7 employment of electronic surveillance shall require 

8 that the minimization procedures required by this 

9 title for the issuance of a judicial order be fol10 lowed.’’; and 

11 (6) in subsection (i)— 

12 (A) by striking ‘‘a wire or’’ and inserting 

13 ‘‘any’’; 

14 (B) by striking ‘‘chapter’’ and inserting 

15 ‘‘title’’; and 

16 (C) by adding at the end ‘‘, or in response 

17 to certification by the Attorney General or his 

18 designee seeking information, facilities, or tech19 nical assistance from such person under section 

20 102 of this title’’. 

21 (g) USE OF INFORMATION.—Section 106 of FISA 

22 (50 U.S.C. 1806) is amended— 

23 (1) in subsection (i)— 

24 (A) by striking ‘‘radio’’; and 


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•S 3931 IS

1 (B) by inserting ‘‘contain foreign intel2 ligence information or’’ after ‘‘the Attorney 

3 General determines that the contents’’ inserting 

4 ‘‘contain foreign intelligence information or’’; 

5 and 

6 (2) in subsection (k), by striking ‘‘1804(a)(7)’’ 

7 and inserting ‘‘104(a)(6)’’. 

8 (h) CONGRESSIONAL OVERSIGHT.—Section 108 of 

9 FISA (50 U.S.C. 1808) is amended by adding at the end 

10 the following: 

11 ‘‘(c) DOCUMENT MANAGEMENT SYSTEM FOR APPLI12 CATIONS FOR ORDERS APPROVING ELECTRONIC SURVEIL13 LANCE.— 

14 ‘‘(1) SYSTEM PROPOSED.—The Attorney Gen15 eral and Director of National Intelligence shall, in 

16 consultation with the Director of the Federal Bu17 reau of Investigation, the Director of the National 

18 Security Agency, the Director of the Central Intel19 ligence Agency, and the court established under sec20 tion 103(b), conduct a feasibility study to develop 

21 and implement a secure, classified document man22 agement system that permits the prompt prepara23 tion, modification, and review by appropriate per24 sonnel of the Department of Justice, the Federal 

25 Bureau of Investigation, the National Security 


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•S 3931 IS

1 Agency, and other applicable elements of the United 

2 States Government of applications under section 104 

3 before their submittal to that court. 

4 ‘‘(2) SCOPE OF SYSTEM.—The document man5 agement system proposed in paragraph (1) shall— 

6 ‘‘(A) permit and facilitate the prompt sub7 mittal of applications and all other matters, in8 cluding electronic filings, to the court estab9 lished under section 103(b) under section 104 

10 or 105(g)(5); and 

11 ‘‘(B) permit and facilitate the prompt 

12 transmittal of rulings of that court to personnel 

13 submitting applications described in paragraph 

14 (1).’’. 

15 (i) AMENDMENTS TO FISA TITLE I RELATING TO

16 WEAPONS OF MASS DESTRUCTION.— 

17 (1) Section 101 of FISA, as amended by sub18 section (b) of this section, is further amended— 

19 (A) in subsection (b)(1)— 

20 (i) by striking ‘‘or’’ at the end of sub21 paragraph (D); 

22 (ii) by redesignating subparagraph 

23 (E) as subparagraph (F); and 

24 (iii) by inserting after subparagraph 

25 (D) the following new subparagraph (E): 


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1 ‘‘(E) engages in the development or pro2 liferation of weapons of mass destruction, or ac3 tivities in preparation therefor; or;’’; 

4 (B) in subsection (b)(2)(C), by striking 

5 ‘‘sabotage or international terrorism’’ and in6 serting ‘‘sabotage, international terrorism, or 

7 the development or proliferation of weapons of 

8 mass destruction’’; and 

9 (C) by inserting after subsection (k) the 

10 following new subsection (l): 

11 ‘‘(l) ‘Weapon of mass destruction’ means— 

12 ‘‘(1) any destructive device (as that term is de13 fined in section 921 of title 18, United States Code) 

14 that is intended or has the capability, to cause death 

15 or serious bodily injury to a significant number of 

16 people; 

17 ‘‘(2) any weapon that is designed or intended to 

18 cause death or serious bodily injury through the re19 lease, dissemination, or impact of toxic or poisonous 

20 chemicals, or their precursors; 

21 ‘‘(3) any weapon involving a biological agent, 

22 toxin, or vector (as those terms are defined in sec23 tion 178 of title 18, United States Code); or 


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1 ‘‘(4) any weapon that is designed to release ra2 diation or radioactivity at a level dangerous to 

3 human life.’’. 

4 (2) Sections 101(e)(1)(B), 106(k)(1)(B), and 

5 305(k)(1)(B) of FISA are each amended by striking 

6 ‘‘sabotage or international terrorism’’ and inserting 

7 ‘‘sabotage, international terrorism, or the develop8 ment or proliferation of weapons of mass destruc9 tion’’. 

10 (j) CONFORMING AMENDMENTS TO TITLES I AND III 

11 OF FISA TO ACCOMMODATE INTERNATIONAL MOVEMENTS

12 OF TARGETS.— 

13 (1) Section 105(e) of FISA is amended by add14 ing at the end the following new paragraph: 

15 ‘‘(4) An order issued under this section shall remain 

16 in force during the authorized period of surveillance not17 withstanding the absence of the target from the United 

18 States, unless the Government files a motion to extinguish 

19 the order and the court grants the motion.’’. 

20 (2) Section 304(d) of FISA is amended by add21 ing at the end the following new paragraph: 

22 ‘‘(4) An order issued under this section shall remain 

23 in force during the authorized period of physical search 

24 notwithstanding the absence of the target from the United 


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1 States, unless the Government files a motion to extinguish 

2 the order and the court grants the motion.’’. 

3 SEC. 10. CONFORMING AMENDMENT TO TABLE OF CON4 TENTS. 

5 The table of contents for the Foreign Intelligence 

6 Surveillance Act of 1978 is amended— 

7 (1) by striking the item relating to section 102 

8 and inserting the following new item: 

‘‘Sec. 102. 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.’’; 

9 (2) by striking the items relating to sections 

10 111, 309, and 404; and 

11 (3) by striking the items related to title VII and 

12 section 701 and inserting the following: 

‘‘TITLE VII—ELECTRONIC SURVEILLANCE PROGRAMS 

‘‘Sec. 701. Definitions. 

‘‘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—EFFECTIVE DATE 

‘‘Sec. 801. Effective date.’’. 

Æ 


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