II 

Calendar No. 600 

109TH CONGRESS 

2D SESSION S. 3877 

Entitled the ‘‘Foreign Intelligence Surveillance Improvement and 

Enhancement Act of 2006’’. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 7 (legislative day, SEPTEMBER 6), 2006 

Mrs. FEINSTEIN 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 ‘‘Foreign Intelligence Surveillance Improvement 

and Enhancement Act of 2006’’. 

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


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1 TITLE I—CONSTRUCTION OF 

2 FOREIGN INTELLIGENCE 

3 SURVEILLANCE AUTHORITY 

4 SEC. 101. REITERATION OF CHAPTERS 119, 121, AND 206 OF 

5 TITLE 18, UNITED STATES CODE, AND FOR6 EIGN INTELLIGENCE SURVEILLANCE ACT OF 

7 1978 AS EXCLUSIVE MEANS BY WHICH DOMES8 TIC ELECTRONIC SURVEILLANCE MAY BE 

9 CONDUCTED. 

10 (a) EXCLUSIVE MEANS.—Notwithstanding any other 

11 provision of law, chapters 119, 121, and 206 of title 18, 

12 United States Code, and the Foreign Intelligence Surveil13 lance Act of 1978 (50 U.S.C. 1801 et seq.) shall be the 

14 exclusive means by which electronic surveillance (as that 

15 term is defined in section 101(f) of the Foreign Intel16 ligence Surveillance Act of 1978 (50 U.S.C. 1801(f)) may 

17 be conducted. 

18 (b) AMENDMENT TO FOREIGN INTELLIGENCE SUR19 VEILLANCE ACT OF 1978.—Section 109(a) of the Foreign 

20 Intelligence Surveillance Act of 1978 (50 U.S.C. 1809(a)) 

21 is amended by striking ‘‘authorized by statute’’ each place 

22 it appears and inserting ‘‘authorized by this title or chap23 ter 119, 121 or 206 of title 18, United States Code’’. 

24 (c) AMENDMENT TO TITLE 18, UNITED STATES

25 CODE.—Section 2511(2)(a)(ii)(B) of title 18, United 


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1 States Code, is amended by striking ‘‘statutory require2 ments’’ and inserting ‘‘requirements under the Foreign In3 telligence Surveillance Act of 1978 (50 U.S.C. 1801 et 

4 seq.), this chapter, or chapters 121 or 206 of this title’’. 

5 SEC. 102. SPECIFIC AUTHORIZATION REQUIRED FOR ANY 

6 REPEAL OR MODIFICATION OF TITLE I OF 

7 THE FOREIGN INTELLIGENCE SURVEIL8 LANCE ACT OF 1978. 

9 (a) IN GENERAL.—Title I of the Foreign Intelligence 

10 Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is 

11 amended by inserting after section 109 the following new 

12 section: 

13 ‘‘SPECIFIC AUTHORIZATION REQUIRED FOR ANY REPEAL

14 OR MODIFICATION OF TITLE

15 ‘‘SEC. 109A. No provision of law shall be construed 

16 to implicitly repeal or modify this title or any provision 

17 thereof, nor shall any provision of law be deemed to repeal 

18 or modify this title in any manner unless such provision 

19 of law, if enacted after the date of the enactment of the 

20 Foreign Intelligence Surveillance Improvement and En21 hancement Act of 2006, expressly amends or otherwise 

22 specifically cites this title.’’. 

23 (b) CLERICAL AMENDMENT.—The table of contents 

24 for that Act is amended by inserting after the item relat25 ing to section 109 the following new item: 


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‘‘Sec. 109A. Specific authorization required for any repeal or modification of 

title.’’. 

1 SEC. 103. INFORMATION FOR CONGRESS ON THE TER2 RORIST SURVEILLANCE PROGRAM AND SIMI3 LAR PROGRAMS. 

4 As soon as practicable after the date of the enactment 

5 of this Act, but not later than seven days after such date, 

6 the President shall brief and inform each member of the 

7 congressional intelligence committees on the following: 

8 (1) The Terrorist Surveillance Program of the 

9 National Security Agency. 

10 (2) Any program which involves, whether in 

11 part or in whole, the electronic surveillance of 

12 United States persons in the United States for for13 eign intelligence purposes, and which is conducted 

14 by any department, agency, or other element of the 

15 United States Government, or by any entity at the 

16 direction of a department, agency, or other element 

17 of the United States Government, without fully com18 plying with the procedures set forth in the Foreign 

19 Intelligence Surveillance Act of 1978 (50 U.S.C. 

20 1801 et seq.) or chapter 119, 121, or 206 of title 

21 18, United States Code. 


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1 TITLE II—APPLICATIONS AND 

2 PROCEDURES FOR ELEC3 TRONIC SURVEILLANCE FOR 

4 FOREIGN INTELLIGENCE 

5 PURPOSES 

6 SEC. 201. EXTENSION OF PERIOD FOR APPLICATIONS FOR 

7 ORDERS FOR EMERGENCY ELECTRONIC SUR8 VEILLANCE. 

9 Section 105(f) of the Foreign Intelligence Surveil10 lance Act of 1978 (50 U.S.C. 1805(f)) is amended by 

11 striking ‘‘72 hours’’ both places it appears and inserting 

12 ‘‘168 hours’’. 

13 SEC. 202. DELEGATION OF AUTHORITY TO APPROVE APPLI14 CATIONS FOR ELECTRONIC SURVEILLANCE. 

15 (a) IN GENERAL.—Section 104 of the Foreign Intel16 ligence Surveillance Act of 1978 (50 U.S.C. 1804) is 

17 amended— 

18 (1) in subsection (a), by striking ‘‘Attorney 

19 General based upon his finding’’ and inserting ‘‘At20 torney General (or a delegee of the Attorney General 

21 under subsection (f)) based upon a finding’’; and 

22 (2) by adding at the end the following new sub23 section: 

24 ‘‘(f) The Attorney General may delegate the authority 

25 to approve an application under this section for an order 


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1 approving electronic surveillance under this title to each 

2 of the following: 

3 ‘‘(1) The Deputy Attorney General. 

4 ‘‘(2) The Assistant Attorney General for Na5 tional Security.’’. 

6 (b) CONFORMING AMENDMENT.—Section 102(b) of 

7 such Act (50 U.S.C. 1802(b)) is amended by inserting 

8 ‘‘(or delegee of the Attorney General under section 

9 104(f))’’ after ‘‘Attorney General’’. 

10 SEC. 203. ADDITIONAL AUTHORITY FOR EMERGENCY ELEC11 TRONIC SURVEILLANCE. 

12 Section 105 of the Foreign Intelligence Surveillance 

13 Act of 1978 (50 U.S.C. 1805) is amended— 

14 (1) by redesignating subsections (g), (h), (i), 

15 and (j) as subsections (h), (i), (j), and (k), respec16 tively; and 

17 (2) by inserting after subsection (f) the fol18 lowing new subsection (g): 

19 ‘‘(g)(1)(A) Notwithstanding any other provision of 

20 this title and subject to the provisions of this subsection, 

21 the Attorney General may, with the concurrence of the Di22 rector of National Intelligence, appoint appropriate super23 visory or executive personnel within the Federal Bureau 

24 of Investigation and the National Security Agency to au25 thorize electronic surveillance on a United States person 


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1 in the United States on an emergency basis pursuant to 

2 the provisions of this subsection. 

3 ‘‘(B) For purposes of this subsection, an intelligence 

4 agent or employee acting under the supervision of a super5 visor or executive appointed under subparagraph (A) may 

6 conduct emergency electronic surveillance under this sub7 section if such supervisor or executive reasonably deter8 mines that— 

9 ‘‘(i) an emergency situation exists with respect 

10 to the employment of electronic surveillance to ob11 tain foreign intelligence information before an order 

12 authorizing such surveillance can with due diligence 

13 be obtained; and 

14 ‘‘(ii) the factual basis exists for the issuance of 

15 an order approving such surveillance under this title. 

16 ‘‘(2) The supervisors and executives appointed by the 

17 Attorney General under paragraph (1) may only be offi18 cials as follows: 

19 ‘‘(A) In the case of the Federal Bureau of In20 vestigation, officials at or above the level of Special 

21 Agent in Charge. 

22 ‘‘(B) In the case of the National Security Agen23 cy, officials at or above the level of head of branch 

24 of the National Security Agency. 


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1 ‘‘(3) A supervisor or executive responsible for the 

2 emergency employment of electronic surveillance under 

3 this subsection shall submit to the Attorney General (and, 

4 if authorized by the Attorney General, to the Deputy At5 torney General and the Assistant Attorney General for 

6 National Security) a request for approval of the surveil7 lance within 24 hours of the commencement of the surveil8 lance. The request shall set forth the ground for the belief 

9 specified in paragraph (1), together with such other infor10 mation as the Attorney General shall require. 

11 ‘‘(4)(A) The review of a request under paragraph (3) 

12 shall be completed by the official concerned under that 

13 paragraph as soon as practicable, but not more than 72 

14 hours after the commencement of the electronic surveil15 lance concerned under paragraph (1). 

16 ‘‘(B)(i) If the official concerned determines that the 

17 electronic surveillance does not meet the requirements of 

18 paragraph (1), the surveillance shall terminate imme19 diately and may not be recommenced by any supervisor 

20 or executive appointed under paragraph (1), or any agent 

21 or employee acting under the supervision of such super22 visor or executive, absent additional facts or changes in 

23 circumstances that lead a supervisor or executive ap24 pointed under paragraph (1) to reasonably believe that the 

25 requirements of paragraph (1) are satisfied. 


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1 ‘‘(ii) In the event of a determination under clause (i), 

2 the Attorney General shall not be required, under section 

3 106(j), to notify any United States person of the fact that 

4 the electronic surveillance covered by such determination 

5 was conducted before the termination of the surveillance 

6 under that clause. However, the official making such de7 termination shall notify the court established by section 

8 103(a) of such determination, and shall also provide notice 

9 of such determination in the first report that is submitted 

10 under section 108(a) after such determination is made. 

11 ‘‘(C) If the official concerned determines that the sur12 veillance meets the requirements of subsection (f), the sur13 veillance may continue, subject to the requirements of 

14 paragraph (5). 

15 ‘‘(5)(A) An application in accordance with this title 

16 shall be made to a judge having jurisdiction under section 

17 103 as soon as practicable but not more than 168 hours 

18 after the commencement of electronic surveillance under 

19 paragraph (1). 

20 ‘‘(B) In the absence of a judicial order approving 

21 electronic surveillance commenced under paragraph (1), 

22 the surveillance shall terminate at the earlier of— 

23 ‘‘(i) when the information sought is obtained; or 


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1 ‘‘(ii) when the application under subparagraph 

2 (A) for an order approving the surveillance is de3 nied; or 

4 ‘‘(iii) 168 hours after the commencement of the 

5 surveillance, unless an application under subpara6 graph (A) is pending, in which case the surveillance 

7 may continue for up to an additional 24 hours while 

8 the judge has the application under advisement. 

9 ‘‘(C) If an application under subparagraph (A) for 

10 an order approving electronic surveillance commenced 

11 under paragraph (1) is denied, or in any other case in 

12 which the surveillance is terminated and no order approv13 ing the surveillance is issued by a court, the use of infor14 mation obtained or evidence derived from the surveillance 

15 shall be governed by the provisions of subsection (f). 

16 ‘‘(D) The denial of an application submitted under 

17 subparagraph (A) may be reviewed as provided in section 

18 103. 

19 ‘‘(6) Any person who engages in the emergency em20 ployment of electronic surveillance under paragraph (1) 

21 shall follow the minimization procedures otherwise re22 quired by this title for the issuance of a judicial order ap23 proving the conduct of electronic surveillance. 

24 ‘‘(7) Not later than 30 days after appointing super25 visors and executives under paragraph (1) to authorize the 


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1 exercise of authority in that paragraph, the Attorney Gen2 eral, in consultation with the Director of National Intel3 ligence, shall submit to the Foreign Intelligence Surveil4 lance Court and the congressional intelligence committees, 

5 and bring up to date as required, a report that— 

6 ‘‘(A) identifies the number of supervisors and 

7 executives who have been so appointed and the posi8 tions held by such supervisors and executives; and 

9 ‘‘(B) sets forth guidelines or other directives 

10 that describe the responsibilities of such supervisors 

11 and executives under this subsection.’’. 

12 SEC. 204. FOREIGN INTELLIGENCE SURVEILLANCE COURT 

13 MATTERS. 

14 (a) AUTHORITY FOR ADDITIONAL JUDGES.—Section 

15 103(a) of the Foreign Intelligence Surveillance Act of 

16 1978 (50 U.S.C. 1803(a)) is amended— 

17 (1) by inserting ‘‘(1)’’ after ‘‘(a)’’; 

18 (2) in paragraph (1), as so designated, by in19 serting ‘‘at least’’ before ‘‘seven of the United States 

20 judicial circuits’’; 

21 (3) by designating the second sentence as para22 graph (4) and indenting such paragraph, as so des23 ignated, two ems from the left margin; and 

24 (4) by inserting after paragraph (1), as so des25 ignated, the following new paragraph: 


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1 ‘‘(2) In addition to the judges designated under para2 graph (1), the Chief Justice of the United States may des3 ignate as judges of the court established by paragraph (1) 

4 such judges appointed under Article III of the Constitu5 tion of the United States as the Chief Justice determines 

6 appropriate in order to provide for the prompt and timely 

7 consideration under section 105 of applications under sec8 tion 104 for electronic surveillance under this title. Any 

9 judge designated under this paragraph shall be designated 

10 publicly.’’. 

11 (b) CONSIDERATION OF EMERGENCY APPLICA12 TIONS.—Such section is further amended by inserting 

13 after paragraph (2), as added by subsection (a)(3) of this 

14 section, the following new paragraph: 

15 ‘‘(3) A judge of the court shall make a determination 

16 to approve, deny, or seek modification of an application 

17 submitted pursuant to section subsection (f) or (g) of sec18 tion 105 not later than 24 hours after the receipt of such 

19 application by the court.’’. 

20 SEC. 205. DOCUMENT MANAGEMENT SYSTEM FOR APPLICA21 TIONS FOR ORDERS APPROVING ELEC22 TRONIC SURVEILLANCE. 

23 (a) SYSTEM REQUIRED.—The Attorney General 

24 shall, in consultation with the Director of the Federal Bu25 reau of Investigation, the Director of the National SecuVerDate Aug 31 2005 04:13 Sep 09, 2006 Jkt 049200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S3877.PCS S3877

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1 rity Agency, and the Foreign Intelligence Surveillance 

2 Court, develop and implement a secure, classified docu3 ment management system that permits the prompt prepa4 ration, modification, and review by appropriate personnel 

5 of the Department of Justice, the Federal Bureau of In6 vestigation, the National Security Agency, and other appli7 cable elements of the United States Government of appli8 cations under section 104 of the Foreign Intelligence Sur9 veillance Act of 1978 (50 U.S.C. 1804) before their sub10 mittal to the Foreign Intelligence Surveillance Court. 

11 (b) SCOPE OF SYSTEM.—The document management 

12 system required by subsection (a) shall— 

13 (1) permit and facilitate the prompt submittal 

14 of applications to the Foreign Intelligence Surveil15 lance Court under section 104 or 105(g)(5) of the 

16 Foreign Intelligence Surveillance Act of 1978; and 

17 (2) permit and facilitate the prompt transmittal 

18 of rulings of the Foreign Intelligence Surveillance 

19 Court to personnel submitting applications described 

20 in paragraph (1). 


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1 SEC. 206. ADDITIONAL PERSONNEL FOR PREPARATION 

2 AND CONSIDERATION OF APPLICATIONS FOR 

3 ORDERS APPROVING ELECTRONIC SURVEIL4 LANCE. 

5 (a) OFFICE OF INTELLIGENCE POLICY AND RE6 VIEW.— 

7 (1) ADDITIONAL PERSONNEL.—The Office of 

8 Intelligence Policy and Review of the Department of 

9 Justice is hereby authorized such additional per10 sonnel, including not fewer than 21 full-time attor11 neys, as may be necessary to carry out the prompt 

12 and timely preparation, modification, and review of 

13 applications under section 104 of the Foreign Intel14 ligence Surveillance Act of 1978 (50 U.S.C. 1804) 

15 for orders under section 105 of that Act (50 U.S.C. 

16 1805) approving electronic surveillance for foreign 

17 intelligence purposes. 

18 (2) ASSIGNMENT.—The Attorney General shall 

19 assign personnel authorized by paragraph (1) to and 

20 among appropriate offices of the National Security 

21 Agency in order that such personnel may directly as22 sist personnel of the Agency in preparing applica23 tions described in that paragraph. 

24 (b) FEDERAL BUREAU OF INVESTIGATION.— 

25 (1) ADDITIONAL LEGAL AND OTHER PER26 SONNEL.—The National Security Branch of the 


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1 Federal Bureau of Investigation is hereby authorized 

2 such additional legal and other personnel as may be 

3 necessary to carry out the prompt and timely prepa4 ration of applications under section 104 of the For5 eign Intelligence Surveillance Act of 1978 for orders 

6 under section 105 of that Act approving electronic 

7 surveillance for foreign intelligence purposes. 

8 (2) ASSIGNMENT.—The Director of the Federal 

9 Bureau of Investigation shall assign personnel au10 thorized by paragraph (1) to and among the field of11 fices of the Federal Bureau of Investigation in order 

12 that such personnel may directly assist personnel of 

13 the Bureau in such field offices in preparing applica14 tions described in that paragraph. 

15 (c) ADDITIONAL LEGAL AND OTHER PERSONNEL

16 FOR NATIONAL SECURITY AGENCY.—The National Secu17 rity Agency is hereby authorized such additional legal and 

18 other personnel as may be necessary to carry out the 

19 prompt and timely preparation of applications under sec20 tion 104 of the Foreign Intelligence Surveillance Act of 

21 1978 for orders under section 105 of that Act approving 

22 electronic surveillance for foreign intelligence purposes. 

23 (d) ADDITIONAL LEGAL AND OTHER PERSONNEL

24 FOR FOREIGN INTELLIGENCE SURVEILLANCE COURT.— 

25 There is hereby authorized for the Foreign Intelligence 


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1 Surveillance Court such additional staff personnel as may 

2 be necessary to facilitate the prompt and timely consider3 ation by that Court of applications under section 104 of 

4 the Foreign Intelligence Surveillance Act of 1978 for or5 ders under section 105 of that Act approving electronic 

6 surveillance for foreign intelligence purposes. Personnel 

7 authorized by this paragraph shall perform such duties re8 lating to the consideration of such applications as that 

9 Court shall direct. 

10 (e) SUPPLEMENT NOT SUPPLANT.—The personnel 

11 authorized by this section are in addition to any other per12 sonnel authorized by law. 

13 SEC. 207. TRAINING OF FEDERAL BUREAU OF INVESTIGA14 TION AND NATIONAL SECURITY AGENCY PER15 SONNEL IN FOREIGN INTELLIGENCE SUR16 VEILLANCE MATTERS. 

17 The Director of the Federal Bureau of Investigation 

18 and the Director of the National Security Agency shall 

19 each, in consultation with the Attorney General— 

20 (1) develop regulations to establish procedures 

21 for conducting and seeking approval of electronic 

22 surveillance on an emergency basis, and for pre23 paring and properly submitting and receiving appli24 cations and orders, under sections 104 and 105 of 


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1 the Foreign Intelligence Surveillance Act of 1978; 

2 and 

3 (2) prescribe related training for the personnel 

4 of the applicable agency. 

5 SEC. 208. ENHANCEMENT OF ELECTRONIC SURVEILLANCE 

6 AUTHORITY IN WARTIME. 

7 Section 111 of the Foreign Intelligence Surveillance 

8 Act of 1978 (50 U.S.C. 1811) is amended by striking ‘‘fol9 lowing a declaration of war by the Congress’’ and inserting 

10 ‘‘following any of the following: 

11 ‘‘(1) A declaration of war by the Congress. 

12 ‘‘(2) An authorization for the use of military 

13 force within the meaning of section 2(c)(2) of the 

14 War Powers Resolution (50 U.S.C. 1541(c)(2)). 

15 ‘‘(3) A national emergency created by attack 

16 upon the United States, its territories or posses17 sions, or the Armed Forces within the meaning of 

18 section 2(c)(3) of the War Powers Resolution (50 

19 U.S.C. 1541(c)(3)).’’. 

20 TITLE III—FOREIGN-FOREIGN 

21 COMMUNICATIONS 

22 SEC. 301. ACQUISITION OF FOREIGN-FOREIGN COMMU23 NICATIONS. 

24 (a) IN GENERAL.—Notwithstanding any other provi25 sion of this Act or the Foreign Intelligence Surveillance 


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1 Act of 1978 (50 U.S.C. 1801 et seq.), no court order shall 

2 be required for the acquisition through electronic surveil3 lance of the contents of any communication between one 

4 person who is not located within the United States and 

5 another person who is not located within the United States 

6 for the purpose of collecting foreign intelligence informa7 tion even if such communication passes through, or the 

8 surveillance device is located within, the United States. 

9 (b) TREATMENT OF INTERCEPTED COMMUNICATIONS

10 INVOLVING DOMESTIC PARTY.—If surveillance conducted 

11 as described in subsection (a) inadvertently collects a com12 munication in which at least one party is within the 

13 United States, the contents of such communications shall 

14 be handled in accordance with the minimization proce15 dures set forth in section 101(h)(4) of the Foreign Intel16 ligence Surveillance Act of 1978 (50 U.S.C. 1801(h)(4)). 

17 (c) DEFINITIONS.—In this section, the terms ‘‘con18 tents’’, ‘‘electronic surveillance’’, and ‘‘foreign intelligence 

19 information’’ have the meaning given such terms in sec20 tion 101 of the Foreign Intelligence Surveillance Act of 

21 1978 (50 U.S.C. 1801). 

22 TITLE IV—OTHER MATTERS 

23 SEC. 401. DEFINITIONS. 

24 In this Act: 


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1 (1) The term ‘‘congressional intelligence com2 mittees’’ means— 

3 (A) the Select Committee on Intelligence of 

4 the Senate; and 

5 (B) the Permanent Select Committee on 

6 Intelligence of the House of Representatives. 

7 (2) The term ‘‘Foreign Intelligence Surveillance 

8 Court’’ means the court established by section 

9 103(a) of the Foreign Intelligence Surveillance Act 

10 of 1978 (50 U.S.C. 1803(a)). 

11 (3) The term ‘‘Foreign Intelligence Surveillance 

12 Court of Review’’ means the court established by 

13 section 103(b) of the Foreign Intelligence Surveil14 lance Act of 1978 (50 U.S.C. 1803(b). 

15 (4) The term ‘‘United States person’’ has the 

16 meaning given such term in section 101(i) of the 

17 Foreign Intelligence Surveillance Act of 1978 (50 

18 U.S.C. 1801(i)). 

19 SEC. 402. AUTHORIZATION OF APPROPRIATIONS. 

20 There is authorized to be appropriated such sums as 

21 may be necessary to carry out this Act and the amend22 ments made by this Act. 

23 SEC. 403. EFFECTIVE DATE. 

24 Except as provided in section 103, this Act, and the 

25 amendments made by this Act, shall take effect on the 


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1 date that is 30 days after the date of the enactment of 

2 this Act. 


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Calendar No. 600 

109TH CONGRESS 

2D SESSION S. 3877 

A BILL 

Improvement and Enhancement Act of 2006’’. 

Entitled the ‘‘Foreign Intelligence Surveillance 

SEPTEMBER 8, 2006 

Read the second time and placed on the calendar 


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