II 

Calendar No. 635 

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 

SEPTEMBER 25, 2006 

Read the second time and placed on the calendar 

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: 


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

2 2001, President Bush authorized the National Secu3 rity Agency to intercept communications between 

4 people inside the United States, including American 

5 citizens, and terrorism suspects overseas. 

6 (2) One of the lessons learned from September 

7 11, 2001, is that the enemies who seek to greatly 

8 harm and terrorize our Nation utilize technologies 

9 and techniques that defy conventional law enforce10 ment practices. 

11 (3) The President, as the constitutional officer 

12 most directly responsible for protecting the United 

13 States from attack, requires the ability and means 

14 to detect and track an enemy that can master and 

15 exploit modern technology. 

16 (4) It is equally essential, however, that in pro17 tecting the United States against our enemies, the 

18 President does not compromise the very civil lib19 erties that he seeks to safeguard. As Justice Hugo 

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

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

22 Congress or from the Constitution itself.’’ Youngs23 town Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 

24 585 (1952) (opinion by Black, J.). Similarly, in 

25 2004, Justice Sandra Day O’Connor explained in 


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1 her plurality opinion for the Supreme Court in 

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

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

4 President when it comes to the rights of the Na5 tion’s citizens.’’ Hamdi v. Rumsfeld, 542 U.S. 507, 

6 536 (2004) (citations omitted). 

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

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

9 feasible, all 3 branches of the Federal Government 

10 should be involved. This helps guarantee that elec11 tronic surveillance programs do not infringe on the 

12 constitutional rights of Americans, while at the same 

13 time ensuring that the President has all the powers 

14 and means necessary to detect and track our en15 emies and protect our Nation from attack. 

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

17 in her plurality opinion for the Supreme Court in 

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

19 States Constitution envisions for the Executive in its 

20 exchanges with other nations or with enemy organi21 zations in times of conflict, it most assuredly envi22 sions a role for all 3 branches when individual lib23 erties are at stake.’’ Hamdi v. Rumsfeld, 542 U.S. 

24 507, 536 (2004) (citations omitted). 


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1 (7) Similarly, Justice Jackson famously ex2 plained in his Youngstown concurrence: ‘‘When the 

3 President acts pursuant to an express or implied au4 thorization of Congress, his authority is at its max5 imum, for it includes all that he possesses in his own 

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

7 the President acts in absence of either a congres8 sional grant or denial of authority, he can only rely 

9 upon his own independent powers, but there is a 

10 zone of twilight in which he and Congress may have 

11 concurrent authority, or in which its distribution is 

12 uncertain. Therefore, congressional inertia, indiffer13 ence or quiescence may sometimes, at least as a 

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

15 independent presidential responsibility ... When the 

16 President takes measures incompatible with the ex17 pressed or implied will of Congress, his power is at 

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

19 own constitutional powers minus any constitutional 

20 powers of Congress over the matter. Courts can sus21 tain exclusive Presidential control in such a case 

22 only by disabling the Congress from acting upon the 

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

24 343 U.S. 579, 635–38 (1952) (Jackson, J., concur25 ring). 


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1 (8) Congress clearly has the authority to enact 

2 legislation with respect to electronic surveillance pro3 grams. The Constitution provides Congress with 

4 broad powers of oversight over national security and 

5 foreign policy, under article I, section 8 of the Con6 stitution of the United States, which confers on Con7 gress numerous powers, including the powers— 

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

9 Marque and Reprisal, and make Rules con10 cerning Captures on Land and Water’’; 

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

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

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

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

15 (E) ‘‘To provide for calling forth the Mili16 tia to execute the Laws of the Union, suppress 

17 Insurrections and repel Invasions’’; and 

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

19 and disciplining the Militia, and for governing 

20 such Part of them as may be employed in the 

21 Service of the United States’’. 

22 (9) While Attorney General Alberto Gonzales 

23 explained that the executive branch reviews the elec24 tronic surveillance program of the National Security 

25 Agency every 45 days to ensure that the program is 


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1 not overly broad, it is the belief of Congress that ap2 proval and supervision of electronic surveillance pro3 grams should be conducted outside of the executive 

4 branch, by the article III court established under 

5 section 103 of the Foreign Intelligence Surveillance 

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

7 intelligence committees. It is also the belief of Con8 gress that it is appropriate for an article III court 

9 to pass upon the constitutionality of electronic sur10 veillance programs that may be directed at Ameri11 cans. 

12 (10) The Foreign Intelligence Surveillance 

13 Court is the proper court to approve and supervise 

14 classified electronic surveillance programs because it 

15 is adept at maintaining the secrecy with which it 

16 was charged and it possesses the requisite expertise 

17 and discretion for adjudicating sensitive issues of 

18 national security. 

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

20 Levi, a strong defender of executive authority, testi21 fied that in times of conflict, the President needs the 

22 power to conduct long-range electronic surveillance 

23 and that a foreign intelligence surveillance court 

24 should be empowered to issue special approval orders 

25 in these circumstances. 


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1 (12) Granting the Foreign Intelligence Surveil2 lance Court the authority to review electronic sur3 veillance programs and pass upon their constitu4 tionality is consistent with well-established, long5 standing practices. 

6 (13) The Foreign Intelligence Surveillance 

7 Court already has broad authority to approve sur8 veillance of members of international conspiracies, in 

9 addition to granting warrants for surveillance of a 

10 particular individual under sections 104, 105, and 

11 402 of the Foreign Intelligence Surveillance Act of 

12 1978 (50 U.S.C. 1804, 1805, and 1842). 

13 (14) Prosecutors have significant flexibility in 

14 investigating domestic conspiracy cases. Courts have 

15 held that flexible warrants comply with the 4th 

16 amendment to the Constitution of the United States 

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

18 multifaceted criminal enterprises like drug conspir19 acies and money laundering rings. The courts recog20 nize that applications for search warrants must be 

21 judged in a common sense and realistic fashion, and 

22 the courts permit broad warrant language where, 

23 due to the nature and circumstances of the inves24 tigation and the criminal organization, more precise 

25 descriptions are not feasible. 


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

2 United States v. United States District Court for 

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

4 (1972), recognized that the standards and proce5 dures used to fight ordinary crime may not be appli6 cable to cases involving national security. The Court 

7 recognized that national ‘‘security surveillance may 

8 involve different policy and practical considerations 

9 from the surveillance of ordinary crime’’ and that 

10 courts should be more flexible in issuing warrants in 

11 national security cases. United States v. United 

12 States District Court for the Eastern District of 

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

14 (16) By authorizing the Foreign Intelligence 

15 Surveillance Court to review electronic surveillance 

16 programs, Congress enables the President to use the 

17 necessary means to guard our national security, 

18 while also protecting the civil liberties and constitu19 tional rights that we cherish. 

20 SEC. 3. DEFINITIONS. 

21 The Foreign Intelligence Surveillance Act of 1978 

22 (50 U.S.C. 1801 et seq.) is amended— 

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

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

25 and 


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

2 ‘‘TITLE VII—ELECTRONIC 

3 SURVEILLANCE PROGRAMS 

4 ‘‘SEC. 701. DEFINITIONS. 

5 ‘‘As used in this title— 

6 ‘‘(1) the terms ‘agent of a foreign power’, ‘At7 torney General’, ‘contents’, ‘electronic surveillance’, 

8 ‘foreign power’, ‘international terrorism’, ‘minimiza9 tion procedures’, ‘person’, ‘United States’, and 

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

11 section 101; 

12 ‘‘(2) the term ‘congressional intelligence com13 mittees’ means the Select Committee on Intelligence 

14 of the Senate and the Permanent Select Committee 

15 on Intelligence of the House of Representatives; 

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

17 means a program to engage in electronic surveil18 lance— 

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

20 gathering of foreign intelligence information or 

21 protecting against international terrorism; 

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

23 person, address, or location to be subjected to 

24 electronic surveillance; 


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1 ‘‘(C) where effective gathering of foreign 

2 intelligence information requires the flexibility 

3 to begin electronic surveillance immediately 

4 after learning of suspect activity; and 

5 ‘‘(D) where effective gathering of foreign 

6 intelligence information requires an extended 

7 period of electronic surveillance; 

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

9 has the same meaning as in section 101(e) and in10 cludes information necessary to protect against 

11 international terrorism; 

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

13 Court’ means the court established under section 

14 103(a); and 

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

16 Court of Review’ means the court established under 

17 section 103(b).’’. 

18 SEC. 4. FOREIGN INTELLIGENCE SURVEILLANCE COURT 

19 JURISDICTION TO REVIEW ELECTRONIC SUR20 VEILLANCE PROGRAMS. 

21 (a) IN GENERAL.—Title VII of the Foreign Intel22 ligence Surveillance Act of 1978, as amended by section 

23 3, is amended by adding at the end the following: 


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1 ‘‘SEC. 702. FOREIGN INTELLIGENCE SURVEILLANCE COURT 

2 JURISDICTION TO REVIEW ELECTRONIC SUR3 VEILLANCE PROGRAMS. 

4 ‘‘(a) AUTHORIZATION OF REVIEW.— 

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

6 Intelligence Surveillance Court shall have jurisdic7 tion to issue an order under this title, lasting not 

8 longer than 90 days, that authorizes an electronic 

9 surveillance program to obtain foreign intelligence 

10 information or to protect against international ter11 rorism. 

12 ‘‘(2) REAUTHORIZATION.—The Foreign Intel13 ligence Surveillance Court shall have jurisdiction to 

14 reauthorize an electronic surveillance program for a 

15 period of time not longer than such court determines 

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

17 number of times the Attorney General may seek re18 authorization of an electronic surveillance program. 

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

20 that the Foreign Intelligence Surveillance Court re21 fuses to approve an application under this sub22 section, the court shall state its reasons in a written 

23 opinion, which it shall submit to the Attorney Gen24 eral. The Attorney General or his designee may sub25 mit a new application under section 703 for the elec26 tronic surveillance program, with no limit on the 


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1 number of resubmissions that may be made. Alter2 natively, the Attorney General may appeal the deci3 sion of the Foreign Intelligence Surveillance Court 

4 to the Foreign Intelligence Surveillance Court of Re5 view. 

6 ‘‘(4) CONTINUED SURVEILLANCE UNDER TITLE

7 I.— 

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

9 Attorney General determines that the known 

10 facts and circumstances relating to any target 

11 within the United States under this title satisfy 

12 the criteria for an application under section 104 

13 for an order for electronic surveillance of the 

14 target under section 105, the Attorney General 

15 shall— 

16 ‘‘(i) discontinue the surveillance of the 

17 target under this title; or 

18 ‘‘(ii) continue the surveillance of the 

19 target under this title, subject to the re20 quirements of subparagraph (B). 

21 ‘‘(B) CONTINUATION OF SURVEILLANCE.— 

22 ‘‘(i) IN GENERAL.—The Attorney 

23 General may continue surveillance of a tar24 get under this title as specified in subpara25 graph (A)(ii) only if the Attorney General 


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1 makes an application under section 104 for 

2 an order for electronic surveillance of the 

3 target under section 105 as soon as the 

4 Attorney General determines practicable 

5 after the date on which the Attorney Gen6 eral makes the determination to continue 

7 surveillance of the target under subpara8 graph (A)(ii). 

9 ‘‘(ii) PERIOD.—The period during 

10 which the Attorney General may continue 

11 surveillance of a target under this title 

12 after the Attorney General has determined 

13 that making an application is practicable 

14 shall be limited to a reasonable period, as 

15 determined by the Attorney General, dur16 ing which the application is prepared and 

17 the period during which the application of 

18 the Attorney General under section 104 for 

19 an order for electronic surveillance of the 

20 target under section 105 is pending under 

21 title I, including during any period in 

22 which appeal from the denial of the appli23 cation is pending with the Foreign Intel24 ligence Surveillance Court of Review or the 

25 Supreme Court under section 103(b). 


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

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

3 court challenging the legality of classified commu4 nications intelligence activity relating to a foreign 

5 threat, including an electronic surveillance program, 

6 or in which the legality of any such activity or pro7 gram is in issue, if the Attorney General files an af8 fidavit under oath that the case should be trans9 ferred to the Foreign Intelligence Surveillance Court 

10 of Review because further proceedings in the origi11 nating court would harm the national security of the 

12 United States, the originating court shall transfer 

13 the case of the Foreign Intelligence Surveillance for 

14 further proceedings under this subsection. 

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

16 Intelligence Surveillance Court shall have jurisdic17 tion as appropriate to determine standing and the 

18 legality of the program to the extent necessary for 

19 resolution of the underlying case. All proceedings 

20 under this paragraph shall be conducted in accord21 ance with the procedures set forth in section 106(f). 

22 In the event the Foreign Intelligence Surveillance 

23 Court determines that, in the context of a criminal 

24 proceeding, the Constitution of the United States 

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1 formation, any such constitutionally required disclo2 sure shall be governed by the Classified Information 

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

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

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

6 DECISIONS.—The decision of the Foreign Intel7 ligence Surveillance Court made under paragraphs 

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

9 of national security information is constitutionally 

10 required, shall be subject to review by the Foreign 

11 Intelligence Surveillance Court of Review under sec12 tion 103(b). The Supreme Court of the United 

13 States shall have jurisdiction to review decisions of 

14 the Foreign Intelligence Surveillance Court of Re15 view by writ of certiorari granted upon the petition 

16 of the United States. The decision by the Foreign 

17 Intelligence Surveillance Court shall otherwise be 

18 binding in all other courts. 

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

20 Surveillance Court or a court that is an originating 

21 court under paragraph (1) may dismiss a challenge 

22 to the legality of an electronic surveillance program 

23 for any reason provided for under law. 

24 ‘‘(5) PRESERVATION OF LITIGATION PRIVI25 LEGES.—Nothing in this Act shall be construed to 


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1 abrogate, limit, or affect any litigation privileges in 

2 any court.’’. 

3 SEC. 5. APPLICATIONS FOR APPROVAL OF ELECTRONIC 

4 SURVEILLANCE PROGRAMS. 

5 Title VII of the Foreign Intelligence Surveillance Act 

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

7 at the end the following: 

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

9 SURVEILLANCE PROGRAMS. 

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

11 an electronic surveillance program under this title (includ12 ing resubmission or application for reauthorization) 

13 shall— 

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

15 designee; 

16 ‘‘(2) include a statement of the authority con17 ferred on the Attorney General by the President of 

18 the United States; 

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

20 basis for the conclusion by the Attorney General 

21 that the electronic surveillance program is consistent 

22 with the Constitution of the United States; 

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

24 electronic surveillance program is to obtain foreign 


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1 intelligence information or to protect against inter2 national terrorism; 

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

4 reasonably be obtained by normal investigative tech5 niques 

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

7 reasonably be obtained through an application under 

8 section 104; 

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

10 operational procedures by which the electronic sur11 veillance will be executed and effected; 

12 ‘‘(8) include an explanation of how the elec13 tronic surveillance program is reasonably designed to 

14 ensure that the communications that are acquired 

15 are communications of or with— 

16 ‘‘(A) a foreign power that engages in inter17 national terrorism or activities in preparation 

18 therefor; 

19 ‘‘(B) an agent of a foreign power that en20 gages in international terrorism or activities in 

21 preparation therefor; 

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

23 communication with or be associated with a for24 eign power that engages in international ter25 rorism or activities in preparation therefor or 


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1 an agent of a foreign power that engages in 

2 international terrorism or activities in prepara3 tion therefor; or 

4 ‘‘(D) a foreign power that poses an immi5 nent threat of attack likely to cause death, seri6 ous injury, or substantial economic damage to 

7 the United States, or an agent of a foreign 

8 power thereof; 

9 ‘‘(9) include a statement of the proposed mini10 mization procedures; 

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

12 is the subject of the application was initiated prior 

13 to the date the application was submitted, specify 

14 the date that the program was initiated; 

15 ‘‘(11) include a description of all previous appli16 cations that have been made under this title involv17 ing the electronic surveillance program in the appli18 cation (including the minimization procedures and 

19 the means and operational procedures proposed) and 

20 the decision on each previous application; and 

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

22 the implementation of the electronic surveillance pro23 gram described in the application, including, for any 

24 period of operation of the program authorized not 


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

2 the application— 

3 ‘‘(A) the minimization procedures imple4 mented; and 

5 ‘‘(B) the means and operational procedures 

6 by which the electronic surveillance was exe7 cuted and effected. 

8 ‘‘(b) ADDITIONAL INFORMATION.—The Foreign In9 telligence Surveillance Court may require the Attorney 

10 General to furnish such other information as may be nec11 essary to make a determination under section 704.’’. 

12 SEC. 6. APPROVAL OF ELECTRONIC SURVEILLANCE PRO13 GRAMS. 

14 Title VII of the Foreign Intelligence Surveillance Act 

15 18 of 1978, as amended by section 5, is amended by add16 ing at the end the following: 

17 ‘‘SEC. 704. APPROVAL OF ELECTRONIC SURVEILLANCE 

18 PROGRAMS. 

19 ‘‘(a) NECESSARY FINDINGS.—Upon receipt of an ap20 plication under section 703, the Foreign Intelligence Sur21 veillance Court shall enter an ex parte order as requested, 

22 or as modified, approving the electronic surveillance pro23 gram if it finds that— 

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

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1 veillance for foreign intelligence information or to 

2 protect against international terrorism; 

3 ‘‘(2) approval of the electronic surveillance pro4 gram in the application is consistent with the Con5 stitution of the United States; 

6 ‘‘(3) the electronic surveillance program is rea7 sonably designed to ensure that the communications 

8 that are acquired are communications of or with— 

9 ‘‘(A) a foreign power that engages in inter10 national terrorism or activities in preparation 

11 therefor; 

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

13 engaged in international terrorism or activities 

14 in preparation therefor; 

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

16 communication with or be associated with a for17 eign power that is engaged in international ter18 rorism or activities in preparation therefor or 

19 an agent of a foreign power that is engaged in 

20 international terrorism or activities in prepara21 tion therefor; or 

22 ‘‘(D) a foreign power that poses an immi23 nent threat of attack likely to cause death, seri24 ous injury, or substantial economic damage to 


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1 the United States, or an agent of a foreign 

2 power thereof; 

3 ‘‘(4) the proposed minimization procedures 

4 meet the definition of minimization procedures 

5 under section 101(h); and 

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

7 certifications required by section 703. 

8 ‘‘(b) CONSIDERATIONS.—In considering the constitu9 tionality of the electronic surveillance program under sub10 section (a), the Foreign Intelligence Surveillance Court 

11 may consider— 

12 ‘‘(1) whether the electronic surveillance pro13 gram has been implemented in accordance with the 

14 proposal by the Attorney General, by comparing— 

15 ‘‘(A) the minimization procedures proposed 

16 with the minimization procedures actually im17 plemented; 

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

19 with the nature of the information actually ob20 tained; and 

21 ‘‘(C) the means and operational procedures 

22 proposed with the means and operational proce23 dures actually implemented; and 


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1 ‘‘(2) whether foreign intelligence information 

2 has been obtained through the electronic surveillance 

3 program. 

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

5 electronic surveillance program under this section shall di6 rect— 

7 ‘‘(1) that the minimization procedures be fol8 lowed; 

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

10 specified communication or other common carriers, 

11 landlords, custodians, or other specified persons, fur12 nish the applicant forthwith with all information, fa13 cilities, or technical assistance necessary to under14 take the electronic surveillance program in such a 

15 manner as will protect its secrecy and produce a 

16 minimum of interference with the services that such 

17 carriers, landlords, custodians, or other persons are 

18 providing potential targets of the electronic surveil19 lance program; 

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

21 surveillance program or the aid furnished or retained 

22 by such carriers, landlords, custodians, or other per23 sons are maintained under security procedures ap24 proved by the Attorney General and the Director of 

25 National Intelligence; and 


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1 ‘‘(4) that the applicant compensate, at the pre2 vailing rate, such carriers, landlords, custodians, or 

3 other persons for furnishing such aid.’’. 

4 SEC. 7. CONGRESSIONAL OVERSIGHT. 

5 Title VII of the Foreign Intelligence Surveillance Act 

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

7 at the end the following: 

8 ‘‘SEC. 705. CONGRESSIONAL OVERSIGHT. 

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

10 days, the Attorney General shall submit to the congres11 sional intelligence committees a report in classified form 

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

13 any electronic surveillance program authorized under this 

14 title. 

15 ‘‘(b) CONTENTS.—Each report submitted under sub16 section (a) shall provide, with respect to the previous 180- 

17 day period, a description of— 

18 ‘‘(1) the minimization procedures implemented; 

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

20 which the electronic surveillance program was exe21 cuted and effected; 

22 ‘‘(3) significant decisions of the Foreign Intel23 ligence Surveillance Court on applications made 

24 under section 703; 


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

2 orders approving electronic surveillance programs 

3 pursuant to this title; and 

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

5 have been granted, modified, or denied. 

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

7 shall be construed to limit the authority or responsibility 

8 of any committee of either House of Congress to obtain 

9 such information as such committee may need to carry 

10 out its respective functions and duties.’’. 

11 SEC. 8. CLARIFICATION OF THE FOREIGN INTELLIGENCE 

12 SURVEILLANCE ACT OF 1978. 

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

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

15 1811, 1829, and 1844) are repealed. 

16 (b) CLARIFYING AMENDMENTS.— 

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

18 United States Code, is amended— 

19 (A) in paragraph (e), by striking ‘‘, as de20 fined in section 101’’ and all that follows 

21 through the end of the paragraph and inserting 

22 the following: ‘‘under the Constitution or the 

23 Foreign Intelligence Surveillance Act of 1978.’’; 

24 and 


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

2 international or foreign communications,’’ and 

3 all that follows through the end of the para4 graph and inserting ‘‘that is authorized under 

5 a Federal statute or the Constitution of the 

6 United States.’’. 

7 (2) FISA.—Section 109 of the Foreign Intel8 ligence Surveillance Act of 1978 (50 U.S.C. 1809) 

9 is amended— 

10 (A) in subsection (a)— 

11 (i) in paragraph (1)— 

12 (I) by striking ‘‘authorized by 

13 statute’’ and inserting ‘‘authorized by 

14 law’’; and 

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

16 (ii) in paragraph (2)— 

17 (I) by striking ‘‘authorized by 

18 statute’’ and inserting ‘‘authorized by 

19 law’’; and 

20 (II) by striking the period and 

21 inserting ‘‘; or’’; and 

22 (iii) by adding at the end the fol23 lowing: 

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1 veillance in a manner or for a purpose not author2 ized by law.’’; and 

3 (B) in subsection (c)— 

4 (i) by striking ‘‘$10,000’’ and insert5 ing ‘‘$100,000’’; and 

6 (ii) by striking ‘‘five years’’ and in7 serting ‘‘15 years’’. 

8 SEC. 9. MODERNIZING AMENDMENTS TO FISA. 

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

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

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

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

13 1801) is amended— 

14 (1) in subsection (b)(1)— 

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

16 after the semicolon; and 

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

18 ‘‘(D) otherwise is reasonably expected to 

19 possess, control, transmit, or receive foreign in20 telligence information while that person is in 

21 the United States, provided that the official 

22 making the certification required by section 

23 104(a)(6) deems such foreign intelligence infor24 mation to be significant; or’’; 


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

2 following: 

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

4 ‘‘(1) the installation or use of an electronic, me5 chanical, or other surveillance device for acquiring 

6 information by intentionally directing the surveil7 lance at a particular known person who is reason8 ably believed to be in the United States under cir9 cumstances in which that person has a reasonable 

10 expectation of privacy and a warrant would be re11 quired for law enforcement purposes; or 

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

13 of any communication under circumstances in which 

14 a person has a reasonable expectation of privacy and 

15 a warrant would be required for law enforcement 

16 purposes, and if both the sender and all intended re17 cipients are reasonably believed to be located within 

18 the United States.’’; 

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

20 and inserting the following: 

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

22 (3), with respect to any electronic surveillance ap23 proved pursuant to section 102 or 704, procedures 

24 that require that no contents of any communication 

25 originated or sent by a United States person shall 


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1 be disclosed, disseminated, used or retained for 

2 longer than 7 days unless a court order under sec3 tion 105 is obtained or unless the Attorney General 

4 determines that the information indicates a threat of 

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

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

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

8 following: 

9 ‘‘(n) ‘contents’, when used with respect to a commu10 nication, includes any information concerning the sub11 stance, symbols, sounds, words, purport, or meaning of a 

12 communication, and does not include dialing, routing, ad13 dressing, or signaling information.’’. 

14 (c) ELECTRONIC SURVEILLANCE AUTHORIZATION.— 

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

16 as follows: 

17 ‘‘ELECTRONIC SURVEILLANCE AUTHORIZATION WITHOUT

18 COURT ORDER; CERTIFICATION BY ATTORNEY GEN19 ERAL; REPORTS TO CONGRESSIONAL COMMITTEES; 

20 TRANSMITTAL UNDER SEAL; DUTIES AND COM21 PENSATION OF COMMUNICATION COMMON CARRIER; 

22 APPLICATIONS; JURISDICTION OF COURT

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

24 President through the Attorney General, may authorize 

25 electronic surveillance without a court order under this 

26 title to acquire foreign intelligence information for periods 


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

2 under oath that the electronic surveillance is directed at— 

3 ‘‘(A)(i) the acquisition of the contents of com4 munications of foreign powers, as defined in para5 graph (1), (2), or (3) of section 101(a), or a person 

6 other than a United States person acting as an 

7 agent of a foreign power, as defined in section 

8 101(b)(1)(A) or (B); or 

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

10 other than the spoken communications of individ11 uals, from property or premises under the open and 

12 exclusive control of a foreign power, as defined in 

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

14 ‘‘(B) the proposed minimization procedures 

15 with respect to such surveillance meet the definition 

16 of minimization procedures under section 101(h); 

17 if the Attorney General reports such minimization proce18 dures and any changes thereto to the Select Committee 

19 on Intelligence of the Senate and the Permanent Select 

20 Committee on Intelligence of the House of Representatives 

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

22 Attorney General determines immediate action is required 

23 and notifies the committees immediately of such minimiza24 tion procedures and the reason for their becoming effective 

25 immediately. 


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

2 subsection may be conducted only in accordance with the 

3 Attorney General’s certification and the minimization pro4 cedures. The Attorney General shall assess compliance 

5 with such procedures and shall report such assessments 

6 to the Select Committee on Intelligence of the Senate and 

7 the Permanent Select Committee on Intelligence of the 

8 House of Representatives under section 108(a). If an elec9 tronic surveillance authorized by this subsection is di10 rected at an agent of a foreign power, the Attorney Gen11 eral’s report assessing compliance with the minimization 

12 procedures shall also include a statement of the facts and 

13 circumstances relied upon to justify the belief that the tar14 get of the electronic surveillance is an agent of a foreign 

15 power. 

16 ‘‘(3) The Attorney General shall immediately trans17 mit under seal to the court established under section 

18 103(a) a copy of any certification under this subsection. 

19 Such certification shall be maintained under security 

20 measures established by the Chief Justice with the concur21 rence of the Attorney General, in consultation with the 

22 Director of National Intelligence, and shall remain sealed 

23 unless— 


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1 ‘‘(A) an application for a court order with re2 spect to the surveillance is made under section 104; 

3 or 

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

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

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

7 the President, through the Attorney General, may author8 ize the acquisition of foreign intelligence information for 

9 periods of up to 1 year concerning a person reasonably 

10 believed to be outside the United States if the Attorney 

11 General certifies in writing under oath that he has deter12 mined that— 

13 ‘‘(A) the acquisition does not constitute elec14 tronic surveillance as defined in section 101(f); 

15 ‘‘(B) the acquisition involves obtaining the for16 eign intelligence information from or with the assist17 ance of a wire or electronic communications service 

18 provider, custodian, or other person (including any 

19 officer, employee, agent, or other specified person 

20 thereof) who has access to wire or electronic commu21 nications, either as they are transmitted or while 

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

23 be used to transmit or store such communications; 

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

25 to obtain foreign intelligence information; and 


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1 ‘‘(D) the minimization procedures to be em2 ployed with respect to such acquisition activity meet 

3 the definition of minimization procedures under sec4 tion 101(h). 

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

6 facilities, places, premises, or property at which the acqui7 sition will be directed. 

8 ‘‘(3) An acquisition undertaken pursuant to this sub9 section may be conducted only in accordance with the At10 torney General’s certification and the minimization proce11 dures adopted by the Attorney General. The Attorney 

12 General shall assess compliance with such procedures and 

13 shall report such assessments to the Select Committee on 

14 Intelligence of the Senate and the Permanent Select Com15 mittee on Intelligence of the House of Representatives 

16 under section 108(a). 

17 ‘‘(4) The Attorney General shall immediately trans18 mit under seal to the court established under section 

19 103(a) a copy of any certification of the Attorney General 

20 under this subsection. Such certification shall be main21 tained under security measures established by the Chief 

22 Justice with the concurrence of the Attorney General, in 

23 consultation with the Director of National Intelligence, 

24 and shall remain sealed unless the certification is necVerDate Aug 31 2005 23:03 Sep 25, 2006 Jkt 049196 PO 00000 Frm 00032 Fmt 6652 Sfmt 6201 E:\BILLS\S3931.PCS S3931

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1 essary to determine the legality of the acquisition under 

2 subsection (o). 

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

4 this section, the Attorney General may direct a specified 

5 person to— 

6 ‘‘(1) furnish the government forthwith all infor7 mation, facilities, and assistance necessary to accom8 plish the acquisition in such a manner as will protect 

9 its secrecy and produce a minimum of interference 

10 with the services that such person is providing to the 

11 target; and 

12 ‘‘(2) maintain under security procedures ap13 proved by the Attorney General and the Director of 

14 National Intelligence any records concerning the ac15 quisition or the aid furnished that such person wish16 es to maintain. 

17 ‘‘(d) The government shall compensate, at the pre18 vailing rate, such specified person for furnishing the aid 

19 set forth in subsection (c). 

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

21 issued pursuant to this section, the Attorney General may 

22 invoke the aid of the court established under section 

23 103(a) to compel compliance with the directive. The court 

24 shall issue an order requiring the person or entity to com25 ply with the directive forthwith if it finds that the directive 


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

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

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

4 Any process under this section may be served in any judi5 cial district in which the person or entity may be found. 

6 ‘‘(f)(1)(A) A person receiving an Attorney General di7 rective issued pursuant to this section may challenge the 

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

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

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

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

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

13 assignment of such petition, the assigned judge shall con14 duct an initial review of the directive. If the assigned judge 

15 determines that the petition is frivolous, the assigned 

16 judge shall immediately deny the petition and affirm the 

17 directive or any part thereof that is the subject of the peti18 tion. If the assigned judge determines the petition is not 

19 frivolous, the assigned judge shall within 72 hours con20 sider the petition in accordance with the procedures estab21 lished under section 103(e)(2) and provide a written state22 ment for the record of the reasons for any determination 

23 under this subsection. 

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

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


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1 finds that such directive does not meet the requirements 

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

3 not modify or set aside the directive, the judge shall imme4 diately affirm such directive, and order the recipient to 

5 comply therewith. 

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

7 consistent with this subsection shall remain in full effect. 

8 ‘‘(g) A petition for review of a decision under sub9 section (f) to affirm, modify, or set aside a directive by 

10 the Government or any person receiving such directive 

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

12 required by subsection (f) to the court of review estab13 lished under section 103(b), which shall have jurisdiction 

14 to consider such petitions. The court of review shall pro15 vide for the record a written statement of the reasons for 

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

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

18 record shall be transmitted under seal to the Supreme 

19 Court of the United States, which shall have jurisdiction 

20 to review such decision. 

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

22 concluded as expeditiously as possible. The record of pro23 ceedings, including petitions filed, orders granted, and 

24 statements of reasons for decision, shall be maintained 

25 under security measures established by the Chief Justice 


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1 of the United States, in consultation with the Attorney 

2 General and the Director of National Intelligence. 

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

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

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

6 parte and in camera any Government submission, or por7 tions thereof, which may include classified information. 

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

9 any provider of a communication service or other person 

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

11 person thereof) for furnishing any information, facilities, 

12 or assistance in accordance with a directive under sub13 section (a) or (b). 

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

15 General authorization under this section concerning any 

16 United States person may be used and disclosed by Fed17 eral officers and employees without the consent of the 

18 United States person only in accordance with the mini19 mization procedures required by subsection (a) or (b), as 

20 applicable. No otherwise privileged communication ob21 tained in accordance with, or in violation of, the provisions 

22 of this section shall lose its privileged character. No infor23 mation from an acquisition under this section may be used 

24 or disclosed by Federal officers or employees except for 

25 lawful purposes. 


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

2 shall be disclosed for law enforcement purposes unless 

3 such disclosure is accompanied by a statement that such 

4 information, or any information derived therefrom, may 

5 only be used in a criminal proceeding with the advance 

6 authorization of the Attorney General. 

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

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

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

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

11 United States, against an aggrieved person, any informa12 tion obtained or derived from an acquisition under this 

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

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

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

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

17 or other authority in which the information is to be dis18 closed or used that the Government intends to so disclose 

19 or so use such information. 

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

21 thereof intends to enter into evidence or otherwise use or 

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

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

24 body, or other authority of a State or a political subdivi25 sion thereof, against an aggrieved person any information 


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1 obtained or derived from an acquisition under this section, 

2 the State or political subdivision thereof shall notify the 

3 aggrieved person, the court or other authority in which 

4 the information is to be disclosed or used, and the Attor5 ney General that the State or political subdivision thereof 

6 intends to so disclose or so use such information. 

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

8 derived from an acquisition authorized pursuant to this 

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

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

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

12 department, officer, agency, regulatory body, or other au13 thority of the United States, a State, or a political subdivi14 sion thereof, may move to suppress the evidence obtained 

15 or derived from such acquisition on the grounds that— 

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

17 or 

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

19 with an order of authorization or approval. 

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

21 other proceeding unless there was no opportunity to make 

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

23 of the motion. 

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

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


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

2 or request is made by an aggrieved person pursuant to 

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

4 before any court or other authority of the United States 

5 or any State to discover or obtain an Attorney General 

6 directive or other materials relating to the acquisition au7 thorized under this section or to discover, obtain, or sup8 press evidence or information obtained or derived from the 

9 acquisition authorized under this section, the United 

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

11 another authority, the United States district court in the 

12 same district as the authority, shall, notwithstanding any 

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

14 oath that disclosure or an adversary hearing would harm 

15 the national security of the United States, review in cam16 era and ex parte the directive, and such other materials 

17 relating to the acquisition as may be necessary to deter18 mine whether the acquisition authorized under this section 

19 was lawfully authorized and conducted. In making this de20 termination, the court may disclose to the aggrieved per21 son, under appropriate security procedures and protective 

22 orders, portions of the directive or other materials relating 

23 to the acquisition only where such disclosure is necessary 

24 to make an accurate determination of the legality of the 

25 acquisition. 


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

2 subsection (o) determines that the acquisition authorized 

3 under this section was not lawfully authorized or con4 ducted, it shall, in accordance with the requirements of 

5 law, suppress the evidence which was unlawfully obtained 

6 or derived or otherwise grant the motion of the aggrieved 

7 person. If the court determines that such acquisition was 

8 lawfully authorized and conducted, it shall deny the mo9 tion of the aggrieved person except to the extent that due 

10 process requires discovery or disclosure. 

11 ‘‘(r) Orders granting motions or requests under sub12 section (o), decisions under this section that an acquisition 

13 was not lawfully authorized or conducted, and orders of 

14 the United States district court requiring review or grant15 ing disclosure of directives or other materials relating to 

16 such acquisition shall be final orders and binding upon 

17 all courts of the United States and the several States ex18 cept a United States court of appeals and the Supreme 

19 Court. 

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

21 information under this section may consult with Federal 

22 law enforcement officers or law enforcement personnel of 

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

24 chief executive officer of that State or political subdivision 

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


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1 enforcement officer of that State or political subdivision) 

2 to coordinate efforts to investigate or protect against— 

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

4 hostile acts of a foreign power or an agent of a for5 eign power; 

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

7 development or proliferation of weapons of mass de8 struction by a foreign power or an agent of a foreign 

9 power; or 

10 ‘‘(3) clandestine intelligence activities by an in11 telligence service or network of a foreign power or by 

12 an agent of a foreign power. 

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

14 not preclude the certification required by subsection (a) 

15 or (b), as applicable. 

16 ‘‘(u) RETENTION OF DIRECTIVES AND ORDERS.—Di17 rectives made and orders granted under this section shall 

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

19 when they were made.’’. 

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

21 (50 U.S.C. 1803) is amended— 

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

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

24 and 


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1 (2) at the end by adding the following new sub2 section: 

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

4 are authorized if the President has, by written authoriza5 tion, empowered the Attorney General to approve applica6 tions to the court having jurisdiction under this section, 

7 and a judge to whom an application is made may, notwith8 standing any other law, grant an order, in conformity with 

9 section 105, approving electronic surveillance of a foreign 

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

11 obtaining foreign intelligence information.’’. 

12 (e) APPLICATIONS FOR COURT ORDERS.—Section 

13 104 of FISA (50 U.S.C. 1804) is amended— 

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

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

16 ‘‘(6) a certification or certifications by the As17 sistant to the President for National Security Af18 fairs or an executive branch official authorized by 

19 the President to conduct electronic surveillance for 

20 foreign intelligence purposes— 

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

22 information sought to be foreign intelligence in23 formation; 


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1 ‘‘(B) that a significant purpose of the sur2 veillance is to obtain foreign intelligence infor3 mation; 

4 ‘‘(C) that such information cannot reason5 ably be obtained by normal investigative tech6 niques; and 

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

8 the certification that— 

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

10 of foreign intelligence information des11 ignated; and 

12 ‘‘(ii) such information cannot reason13 ably be obtained by normal investigative 

14 techniques; 

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

16 the electronic surveillance is required to be main17 tained, and if the nature of the intelligence gath18 ering is such that the approval of the use of elec19 tronic surveillance under this title should not auto20 matically terminate when the described type of infor21 mation has first been obtained, a description of facts 

22 supporting the belief that additional information of 

23 the same type will be obtained thereafter; 


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

2 information sought and the type of communications 

3 or activities to be subject to the surveillance; 

4 ‘‘(9) a summary statement of the facts con5 cerning all previous applications that have been 

6 made to any judge under this title involving any of 

7 the persons, facilities, or places specified in the ap8 plication, and the action taken on each previous ap9 plication; and 

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

11 which the surveillance will be effected and a state12 ment whether physical entry is required to effect the 

13 surveillance.’’; 

14 (2) by striking subsection (b); 

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

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

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

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

19 State’’ inserting ‘‘Director of the Central Intel20 ligence Agency’’. 

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

22 U.S.C. 1805) is amended— 

23 (1) in subsection (a), by— 

24 (A) striking paragraph (1); and 


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1 (B) redesignating paragraphs (2) through 

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

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

4 and inserting the following: 

5 ‘‘(1) An order approving an electronic surveil6 lance under this section shall specify— 

7 ‘‘(A) the identity, if known, or a descrip8 tion of the target of the electronic surveillance 

9 identified or described in the application pursu10 ant to section 104(a)(3); 

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

12 facilities or places at which the electronic sur13 veillance will be directed, if known; 

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

15 electronic surveillance is approved; 

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

17 acquired and the type of communications or ac18 tivities to be subjected to the surveillance; and 

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

20 surveillance will be effected and whether phys21 ical entry will be used to effect the surveil22 lance.’’; 

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

24 following: 


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

2 type of electronic surveillance involved, including whether 

3 physical entry is required.’’; 

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

5 and inserting the following: 

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

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

8 upon an application for an extension and new findings 

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

10 and may be for a period not longer than the court deter11 mines to be reasonable or 1 year, whichever is less.’’; 

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

13 following: 

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

15 title, when an executive branch officer appointed by the 

16 President with the advice and consent of the Senate who 

17 is authorized by the President to conduct electronic sur18 veillance reasonably determines that— 

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

20 to the employment of electronic surveillance to ob21 tain foreign intelligence information before an order 

22 authorizing such surveillance can with due diligence 

23 be obtained; and 

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

25 under this title to approve such surveillance exists; 


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1 that official may authorize the emergency employment of 

2 electronic surveillance in accordance with paragraph (2). 

3 ‘‘(2) Under paragraph (1), the following require4 ments shall be satisfied: 

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

6 the emergency electronic surveillance. 

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

8 103 shall be informed by the Attorney General or 

9 his designee as soon as practicable following such 

10 authorization that the decision has been made to 

11 employ emergency electronic surveillance. 

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

13 title shall be made to that judge or another judge 

14 having jurisdiction under section 103 as soon as 

15 practicable, but not more than 7 days after such 

16 surveillance is authorized. In the absence of a judi17 cial order approving such electronic surveillance, the 

18 surveillance shall terminate when the information 

19 sought is obtained, when the application for the 

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

21 from the time of emergency authorization, whichever 

22 is earliest. In the event that such application for ap23 proval is denied, or in any other case where the elec24 tronic surveillance is terminated and no order is 

25 issued approving the surveillance, no information obVerDate Aug 31 2005 23:03 Sep 25, 2006 Jkt 049196 PO 00000 Frm 00047 Fmt 6652 Sfmt 6201 E:\BILLS\S3931.PCS S3931

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1 tained or evidence derived from such surveillance 

2 shall be received in evidence or otherwise disclosed 

3 in any trial, hearing, or other proceeding in or be4 fore any court, grand jury, department, office, agen5 cy, regulatory body, legislative committee, or other 

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

7 subdivision thereof, and no information concerning 

8 any United States person acquired from such sur9 veillance shall subsequently be used or disclosed in 

10 any other manner by Federal officers or employees 

11 without the consent of such person, except with the 

12 approval of the Attorney General if the information 

13 indicates a threat of death or serious bodily harm to 

14 any person. A denial of the application made under 

15 this subsection may be reviewed as provided in sec16 tion 103. 

17 ‘‘(D) The official authorizing the emergency 

18 employment of electronic surveillance shall require 

19 that the minimization procedures required by this 

20 title for the issuance of a judicial order be fol21 lowed.’’; and 

22 (6) in subsection (i)— 

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

24 ‘‘any’’; 


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

2 ‘‘title’’; and 

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

4 to certification by the Attorney General or his 

5 designee seeking information, facilities, or tech6 nical assistance from such person under section 

7 102 of this title’’. 

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

9 (50 U.S.C. 1806) is amended— 

10 (1) in subsection (i)— 

11 (A) by striking ‘‘radio’’; and 

12 (B) by inserting ‘‘contain foreign intel13 ligence information or’’ after ‘‘the Attorney 

14 General determines that the contents’’ inserting 

15 ‘‘contain foreign intelligence information or’’; 

16 and 

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

18 and inserting ‘‘104(a)(6)’’. 

19 (h) CONGRESSIONAL OVERSIGHT.—Section 108 of 

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

21 the following: 

22 ‘‘(c) DOCUMENT MANAGEMENT SYSTEM FOR APPLI23 CATIONS FOR ORDERS APPROVING ELECTRONIC SURVEIL24 LANCE.— 


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1 ‘‘(1) SYSTEM PROPOSED.—The Attorney Gen2 eral and Director of National Intelligence shall, in 

3 consultation with the Director of the Federal Bu4 reau of Investigation, the Director of the National 

5 Security Agency, the Director of the Central Intel6 ligence Agency, and the court established under sec7 tion 103(b), conduct a feasibility study to develop 

8 and implement a secure, classified document man9 agement system that permits the prompt prepara10 tion, modification, and review by appropriate per11 sonnel of the Department of Justice, the Federal 

12 Bureau of Investigation, the National Security 

13 Agency, and other applicable elements of the United 

14 States Government of applications under section 104 

15 before their submittal to that court. 

16 ‘‘(2) SCOPE OF SYSTEM.—The document man17 agement system proposed in paragraph (1) shall— 

18 ‘‘(A) permit and facilitate the prompt sub19 mittal of applications and all other matters, in20 cluding electronic filings, to the court estab21 lished under section 103(b) under section 104 

22 or 105(g)(5); and 

23 ‘‘(B) permit and facilitate the prompt 

24 transmittal of rulings of that court to personnel 


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1 submitting applications described in paragraph 

2 (1).’’. 

3 (i) AMENDMENTS TO FISA TITLE I RELATING TO

4 WEAPONS OF MASS DESTRUCTION.— 

5 (1) Section 101 of FISA, as amended by sub6 section (b) of this section, is further amended— 

7 (A) in subsection (b)(1)— 

8 (i) by striking ‘‘or’’ at the end of sub9 paragraph (D); 

10 (ii) by redesignating subparagraph 

11 (E) as subparagraph (F); and 

12 (iii) by inserting after subparagraph 

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

14 ‘‘(E) engages in the development or pro15 liferation of weapons of mass destruction, or ac16 tivities in preparation therefor; or;’’; 

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

18 ‘‘sabotage or international terrorism’’ and in19 serting ‘‘sabotage, international terrorism, or 

20 the development or proliferation of weapons of 

21 mass destruction’’; and 

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

23 following new subsection (l): 

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


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1 ‘‘(1) any destructive device (as that term is de2 fined in section 921 of title 18, United States Code) 

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

4 or serious bodily injury to a significant number of 

5 people; 

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

7 cause death or serious bodily injury through the re8 lease, dissemination, or impact of toxic or poisonous 

9 chemicals, or their precursors; 

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

11 toxin, or vector (as those terms are defined in sec12 tion 178 of title 18, United States Code); or 

13 ‘‘(4) any weapon that is designed to release ra14 diation or radioactivity at a level dangerous to 

15 human life.’’. 

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

17 305(k)(1)(B) of FISA are each amended by striking 

18 ‘‘sabotage or international terrorism’’ and inserting 

19 ‘‘sabotage, international terrorism, or the develop20 ment or proliferation of weapons of mass destruc21 tion’’. 

22 (j) CONFORMING AMENDMENTS TO TITLES I AND III 

23 OF FISA TO ACCOMMODATE INTERNATIONAL MOVEMENTS

24 OF TARGETS.— 


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1 (1) Section 105(e) of FISA is amended by add2 ing at the end the following new paragraph: 

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

4 in force during the authorized period of surveillance not5 withstanding the absence of the target from the United 

6 States, unless the Government files a motion to extinguish 

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

8 (2) Section 304(d) of FISA is amended by add9 ing at the end the following new paragraph: 

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

11 in force during the authorized period of physical search 

12 notwithstanding the absence of the target from the United 

13 States, unless the Government files a motion to extinguish 

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

15 SEC. 10. CONFORMING AMENDMENT TO TABLE OF CON16 TENTS. 

17 The table of contents for the Foreign Intelligence 

18 Surveillance Act of 1978 is amended— 

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

20 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.’’; 

21 (2) by striking the items relating to sections 

22 111, 309, and 404; and 


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

2 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.’’. 


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Calendar No. 635 

109TH CONGRESS 

2D SESSION S. 3931 

A BILL 

To establish procedures for the review of electronic 

surveillance programs. 

SEPTEMBER 25, 2006 

Read the second time and placed on the calendar 


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