II 

Calendar No. 599 

109TH CONGRESS 

2D SESSION S. 3876 

Entitled The National Security Surveillance Act. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 7 (legislative day, SEPTEMBER 6), 2006 

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

SEPTEMBER 8, 2006 

Read the second time and placed on the calendar 

A BILL 

Entitled The National Security Surveillance Act. 

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 ‘‘National Security Sur5 veillance Act of 2006’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds the following: 

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

9 2001, President Bush authorized the National SecuVerDate Aug 31 2005 00:27 Sep 09, 2006 Jkt 049200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S3876.PCS S3876

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1 rity Agency to intercept communications between 

2 people inside the United States, including American 

3 citizens, and terrorism suspects overseas. 

4 (2) One of the lessons learned from September 

5 11, 2001, is that the enemies who seek to greatly 

6 harm and terrorize our Nation utilize technologies 

7 and techniques that defy conventional law enforce8 ment practices. 

9 (3) For days before September 11, 2001, the 

10 Federal Bureau of Investigation suspected that con11 fessed terrorist Zacarias Moussaoui was planning to 

12 hijack a commercial plane. The Federal Bureau of 

13 Investigation, however, could not meet the require14 ments to obtain a traditional criminal warrant or an 

15 order under the Foreign Intelligence Surveillance 

16 Act of 1978 to search his laptop computer (Report 

17 of the 9/11 Commission 273–76). 

18 (4) The President, as the constitutional officer 

19 most directly responsible for protecting the United 

20 States from attack, requires the ability and means 

21 to detect and track an enemy that can master and 

22 exploit modern technology. 

23 (5) It is equally essential, however, that in pro24 tecting the United Sates against our enemies, the 

25 President does not compromise the very civil libVerDate Aug 31 2005 23:57 Sep 08, 2006 Jkt 049196 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3876.PCS S3876

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1 erties that he seeks to safeguard. As Justice Hugo 

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

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

4 Congress or from the Constitution itself.’’ Youngs5 town Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 

6 585 (1952) (opinion by Black, J.). Similarly, in 

7 2004, Justice Sandra Day O’Connor explained in 

8 her plurality opinion for the Supreme Court in 

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

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

11 President when it comes to the rights of the Na12 tion’s citizens.’’ Hamdi v. Rumsfeld, 542 U.S. 507, 

13 536 (2004) (citations omitted). 

14 (6) When deciding issues of national security, it 

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

16 feasible, all 3 branches of the Federal Government 

17 should be involved. This helps guarantee that elec18 tronic surveillance programs do not infringe on the 

19 constitutional rights of Americans, while at the same 

20 time ensuring that the President has all the powers 

21 and means necessary to detect and track our en22 emies and protect our Nation from attack. 

23 (7) As Justice Sandra Day O’Connor explained 

24 in her plurality opinion for the Supreme Court in 

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


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1 States Constitution envisions for the Executive in its 

2 exchanges with other nations or with enemy organi3 zations in times of conflict, it most assuredly envi4 sions a role for all 3 branches when individual lib5 erties are at stake.’’ Hamdi v. Rumsfeld, 542 U.S. 

6 507, 536 (2004) (citations omitted). 

7 (8) Similarly, Justice Jackson famously ex8 plained in his Youngstown concurrence: ‘‘When the 

9 President acts pursuant to an express or implied au10 thorization of Congress, his authority is at its max11 imum, for it includes all that he possesses in his own 

12 right plus all that Congress can delegate... When the 

13 President acts in absence of either a congressional 

14 grant or denial of authority, he can only rely upon 

15 his own independent powers, but there is a zone of 

16 twilight in which he and Congress may have concur17 rent authority, or in which its distribution is uncer18 tain. Therefore, congressional inertia, indifference or 

19 quiescence may sometimes, at least as a practical 

20 matter, enable, if not invite, measures on inde21 pendent presidential responsibility... When the Presi22 dent takes measures incompatible with the expressed 

23 or implied will of Congress, his power is at its lowest 

24 ebb, for then he can rely only upon his own constitu25 tional powers minus any constitutional powers of 


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1 Congress over the matter. Courts can sustain exclu2 sive Presidential control in such a case only by dis3 abling the Congress from acting upon the subject.’’ 

4 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 

5 579, 635–38 (1952) (Jackson, J., concurring). 

6 (9) Congress clearly has the authority to enact 

7 legislation with respect to electronic surveillance pro8 grams. The Constitution provides Congress with 

9 broad powers of oversight over national security and 

10 foreign policy, under article I, section 8 of the Con11 stitution of the United States, which confers on Con12 gress numerous powers, including the powers— 

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

14 Marque and Reprisal, and make Rules con15 cerning Captures on Land and Water’’; 

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

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

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

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

20 (E) ‘‘To provide for calling forth the Mili21 tia to execute the Laws of the Union, suppress 

22 Insurrections and repel Invasions’’; and 

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

24 and disciplining the Militia, and for governing 


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1 such Part of them as may be employed in the 

2 Service of the United States’’. 

3 (10) While Attorney General Alberto Gonzales 

4 explained that the executive branch reviews the elec5 tronic surveillance program of the National Security 

6 Agency every 45 days to ensure that the program is 

7 not overly broad, it is the belief of Congress that ap8 proval and supervision of electronic surveillance pro9 grams should be conducted outside of the executive 

10 branch, by the article III court established under 

11 section 103 of the Foreign Intelligence Surveillance 

12 Act of 1978 (50 U.S.C. 1803). It is also the belief 

13 of Congress that it is appropriate for an article III 

14 court to pass upon the constitutionality of electronic 

15 surveillance programs that may implicate the rights 

16 of Americans. 

17 (11) The Foreign Intelligence Surveillance 

18 Court is the proper court to approve and supervise 

19 classified electronic surveillance programs because it 

20 is adept at maintaining the secrecy with which it 

21 was charged and it possesses the requisite expertise 

22 and discretion for adjudicating sensitive issues of 

23 national security. 

24 (12) In 1975, [then] Attorney General Edward 

25 Levi, a strong defender of executive authority, testiVerDate Aug 31 2005 23:57 Sep 08, 2006 Jkt 049196 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S3876.PCS S3876

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1 fied that in times of conflict, the President needs the 

2 power to conduct long-range electronic surveillance 

3 and that a foreign intelligence surveillance court 

4 should be empowered to issue special approval orders 

5 in these circumstances. 

6 (13) The Foreign Intelligence Surveillance Act 

7 of 1978 clarifies and definitively establishes that the 

8 Foreign Intelligence Surveillance Court has the au9 thority to review electronic surveillance programs 

10 and pass upon their constitutionality. Such authority 

11 is consistent with well-established, longstanding 

12 practices. 

13 (14) The Foreign Intelligence Surveillance 

14 Court already has broad authority to approve sur15 veillance of members of international conspiracies, in 

16 addition to granting warrants for surveillance of a 

17 particular individual under sections 104, 105, and 

18 402 of the Foreign Intelligence Surveillance Act of 

19 1978 (50 U.S.C. 1804, 1805, and 1842). 

20 (15) Prosecutors have significant flexibility in 

21 investigating domestic conspiracy cases. Courts have 

22 held that flexible warrants comply with the 4th 

23 amendment to the Constitution of the United States 

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

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1 acies and money laundering rings. The courts recog2 nize that applications for search warrants must be 

3 judged in a common sense and realistic fashion, and 

4 the courts permit broad warrant language where, 

5 due to the nature and circumstances of the inves6 tigation and the criminal organization, more precise 

7 descriptions are not feasible. 

8 (16) Federal agents investigating international 

9 terrorism by foreign enemies are entitled to tools at 

10 least as broad as those used by law enforcement offi11 cers investigating domestic crimes by United States 

12 citizens. The Supreme Court, in the ‘‘Keith Case’’, 

13 United States v. United States District Court for 

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

15 (1972), recognized that the standards and proce16 dures used to fight ordinary crime may not be appli17 cable to cases involving national security. The Court 

18 recognized that national ‘‘security surveillance may 

19 involve different policy and practical considerations 

20 from the surveillance of ordinary crime’’ and that 

21 courts should be more flexible in issuing warrants in 

22 national security cases. United States v. United 

23 States District Court for the Eastern District of 

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


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1 (17) By authorizing the Foreign Intelligence 

2 Surveillance Court to review electronic surveillance 

3 programs, Congress preserves the ability of the 

4 President to use the necessary means to guard our 

5 national security, while also protecting the civil lib6 erties and constitutional rights that we cherish. 

7 SEC. 3. DEFINITIONS. 

8 The Foreign Intelligence Surveillance Act of 1978 

9 (50 U.S.C. 1801 et seq.) is amended— 

10 (1) by redesignating title VII as title IX; 

11 (2) by redesignating section 701 as section 901; 

12 and 

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

14 ‘‘TITLE VII—ELECTRONIC 

15 SURVEILLANCE 

16 ‘‘SEC. 701. DEFINITION. 

17 ‘‘As used in this title— 

18 ‘‘(1) the terms ‘agent of a foreign power’, ‘At19 torney General’, ‘foreign power’, ‘international ter20 rorism’, ‘minimization procedures’, ‘person’, ‘United 

21 States’, and ‘United States person’ have the same 

22 meaning as in section 101; 

23 ‘‘(2) the term ‘congressional intelligence com24 mittees’ means the Select Committee on Intelligence 


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1 of the Senate and the Permanent Select Committee 

2 on Intelligence of the House of Representatives; 

3 ‘‘(3) the term ‘electronic communication’ means 

4 any transfer of signs, signals, writing, images, 

5 sounds, data, or intelligence of any nature trans6 mitted, in whole or in part, by a wire, radio, electro 

7 magnetic, photo electronic or photo optical system, 

8 cable, or other like connection furnished or operated 

9 by any person engaged as a common carrier in pro10 viding or operating such facilities for the trans11 mission of communications; 

12 ‘‘(4) the term ‘electronic tracking’ means the 

13 acquisition by an electronic, mechanical, or other 

14 surveillance device of the substance of any electronic 

15 communication sent by, received by, or intended to 

16 be received by a person who is reasonably believed 

17 to be in the United States, through the intentional 

18 targeting of that person’s communications, where a 

19 person in the United States participating in the 

20 communication has a reasonable expectation of pri21 vacy; 

22 ‘‘(5) the term ‘electronic surveillance program’ 

23 means a program to engage in electronic tracking— 


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

2 gathering of foreign intelligence information or 

3 protecting against international terrorism; 

4 ‘‘(B) where it is not technically feasible to 

5 name every person or address every location to 

6 be subjected to electronic tracking; 

7 ‘‘(C) where effective gathering of foreign 

8 intelligence information requires the flexibility 

9 to begin electronic surveillance immediately 

10 after learning of suspect activity; and 

11 ‘‘(D) where effective gathering of foreign 

12 intelligence information requires an extended 

13 period of electronic surveillance; 

14 ‘‘(6) the term ‘foreign intelligence information’ 

15 has the same meaning as in section 101 and in16 cludes information necessary to protect against 

17 international terrorism; 

18 ‘‘(7) the term ‘Foreign Intelligence Surveillance 

19 Court’ means the court established under section 

20 103(a); 

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

22 Court of Review’ means the court established under 

23 section 103(b); 

24 ‘‘(9) the term ‘intercept’ means the acquisition 

25 of the substance of any electronic communication by 


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1 a person through the use of any electronic, mechan2 ical, or other device; and 

3 ‘‘(10) the term ‘substance’ means any informa4 tion concerning the symbols, sounds, words, purport, 

5 or meaning of a communication, and does not in6 clude dialing, routing, addressing, or signaling.’’. 

7 SEC. 4. FOREIGN INTELLIGENCE SURVEILLANCE COURT 

8 JURISDICTION TO REVIEW ELECTRONIC SUR9 VEILLANCE PROGRAMS. 

10 (a) IN GENERAL.—Title VII of the Foreign Intel11 ligence Surveillance Act of 1978, as amended by section 

12 3, is amended by adding at the end the following: 

13 ‘‘SEC. 702. FOREIGN INTELLIGENCE SURVEILLANCE COURT 

14 JURISDICTION TO REVIEW ELECTRONIC SUR15 VEILLANCE PROGRAMS. 

16 ‘‘(a) AUTHORIZATION OF REVIEW.— 

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

18 Intelligence Surveillance Court shall have jurisdic19 tion to issue an order under this title, lasting not 

20 longer than 90 days, that authorizes an electronic 

21 surveillance program to obtain foreign intelligence 

22 information or to protect against international ter23 rorism. 

24 ‘‘(2) REAUTHORIZATION.—The Foreign Intel25 ligence Surveillance Court shall have jurisdiction to 


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1 reauthorize an electronic surveillance program for a 

2 period of time not longer than such court determines 

3 to be reasonable. 

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

5 that the Foreign Intelligence Surveillance Court re6 fuses to approve an application under this sub7 section, the Attorney General may submit a new ap8 plication. There shall be no limit on the number of 

9 times the Attorney General may seek approval of an 

10 electronic surveillance program. Alternatively, the 

11 Attorney General may appeal the decision of the 

12 Foreign Intelligence Surveillance Court to the For13 eign Intelligence Surveillance Court of Review. 

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

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

16 court challenging the legality of classified commu17 nications intelligence activity relating to a foreign 

18 threat, including an electronic surveillance program, 

19 or in which the legality of any such activity or pro20 gram is in issue, if the Attorney General files an af21 fidavit under oath that the case should be trans22 ferred to the Foreign Intelligence Court of Review 

23 because further proceedings in the originating court 

24 would harm the national security of the United 

25 States, the originating court shall transfer the case 


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1 to the Foreign Intelligence Surveillance Court of Re2 view for further proceedings under this subsection. 

3 ‘‘(2) RETRANSFER TO ORIGINATING COURT.— 

4 Upon completion of review pursuant to this sub5 section, the Foreign Intelligence Surveillance Court 

6 of Review shall remand the case to the originating 

7 court for further proceedings consistent with its 

8 opinion. 

9 ‘‘(3) PRESERVATION OF LITIGATION.—In any 

10 case that is transferred and received under this sub11 section, all litigation privileges shall be preserved. 

12 ‘‘(4) CERTIORARI AND EFFECTS OF DECI13 SIONS.—The decision the Foreign Intelligence Sur14 veillance Court of Review made under paragraph 

15 (1), including a decision that the disclosure of na16 tional security information is constitutionally re17 quired, shall be subject to certiorari review in the 

18 United States Supreme Court, and shall otherwise 

19 be binding in all other courts. 

20 ‘‘(5) DISMISSAL.—The Foreign Intelligence 

21 Surveillance Court of Review or a court that is an 

22 originating court under paragraph (1) may dismiss 

23 a challenge to the legality of an electronic surveil24 lance program for any reason provided for under 

25 law. 


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1 ‘‘(c) MODIFICATIONS AND APPEAL IN EVENT APPLI2 CATION IS DENIED.—In the event that the Foreign Intel3 ligence Surveillance Court declines to approve an applica4 tion under subsection (a)— 

5 ‘‘(1) the court shall state its reasons in a writ6 ten opinion, which it shall submit to the Attorney 

7 General; and 

8 ‘‘(2) the Attorney General may submit a new 

9 application under section 703 for the electronic sur10 veillance program.’’. 

11 SEC. 5. APPLICATIONS FOR APPROVAL OF ELECTRONIC 

12 SURVEILLANCE PROGRAMS. 

13 Title VII of the Foreign Intelligence Surveillance Act 

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

15 at the end the following: 

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

17 SURVEILLANCE PROGRAMS. 

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

19 an electronic surveillance program under this title (includ20 ing for reauthorization) shall— 

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

22 designee; 

23 ‘‘(2) include a statement of the authority con24 ferred on the Attorney General by the President of 

25 the United States; 


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

2 basis for the conclusion by the Attorney General 

3 that the electronic surveillance program is consistent 

4 with the Constitution of the United States; 

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

6 electronic surveillance program is to gather foreign 

7 intelligence information or to protect against inter8 national terrorism; 

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

10 reasonably be obtained by normal investigative tech11 niques or through an application under section 104; 

12 ‘‘(6) include a statement of the means and 

13 operational procedures by which the electronic track14 ing will be executed and effected; 

15 ‘‘(7) include an explanation of how the elec16 tronic surveillance program is reasonably designed to 

17 ensure that the communications that are intercepted 

18 are communications of or with— 

19 ‘‘(A) a foreign power that is engaged in 

20 international terrorism activities or in prepara21 tion therefor; 

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

23 engaged in international terrorism activities or 

24 in preparation therefor; or 


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

2 communication with or be associated with a for3 eign power that is engaged in international ter4 rorism activities or in preparation therefor or 

5 an agent of a foreign power that is engaged in 

6 international terrorism activities or in prepara7 tion therefor; 

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

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

11 is the subject of the application was initiated prior 

12 to the date the application was submitted, specify 

13 the date that the program was initiated; 

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

18 the means and operational procedures proposed) and 

19 the decision on each previous application; and 

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

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

23 period of operation of the program authorized not 

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

25 the application— 


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

3 ‘‘(B) the means and operational procedures 

4 by which the electronic tracking was executed 

5 and effected. 

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

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

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

12 Title VII of the Foreign Intelligence Surveillance Act 

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

15 ‘‘SEC. 704. APPROVAL OF ELECTRONIC SURVEILLANCE 

16 PROGRAMS. 

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

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

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

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

25 protect against international terrorism; 


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

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

6 that are intercepted are communications of or 

7 with— 

8 ‘‘(A) a foreign power that is engaged in 

9 international terrorism activities or in prepara10 tion therefor; 

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

12 engaged in international terrorism activities or 

13 in preparation therefor; or 

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

15 communication with or be associated with a for16 eign power that is engaged in international ter17 rorism activities or in preparation therefor or 

18 an agent of a foreign power that is engaged in 

19 international terrorism activities or in prepara20 tion therefor; 

21 ‘‘(4) the proposed minimization procedures 

22 meet the definition of minimization procedures 

23 under section 101(h); and 

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

25 certifications required by section 703. 


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1 ‘‘(b) CONSIDERATIONS.—In considering the constitu2 tionality of the electronic surveillance program under sub3 section (a), the Foreign Intelligence Surveillance Court 

4 may consider— 

5 ‘‘(1) whether the electronic surveillance pro6 gram has been implemented in accordance with the 

7 proposal by the Attorney General by comparing— 

8 ‘‘(A) the minimization procedures proposed 

9 with the minimization procedures actually im10 plemented; 

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

12 with the nature of the information actually ob13 tained; and 

14 ‘‘(C) the means and operational procedures 

15 proposed with the means and operational proce16 dures actually implemented; and 

17 ‘‘(2) whether foreign intelligence information 

18 has been obtained through the electronic surveillance 

19 program. 

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

21 electronic surveillance program under this section shall di22 rect— 

23 ‘‘(1) that the minimization procedures be fol24 lowed; 


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

2 specified communication or other common carriers, 

3 landlords, custodians, or other specified person, fur4 nish the applicant forthwith with all information, fa5 cilities, or technical assistance necessary to under6 take the electronic surveillance program in such a 

7 manner as will protect its secrecy and produce a 

8 minimum of interference with the services that such 

9 carriers, landlords, custodians, or other persons are 

10 providing potential targets of the electronic surveil11 lance program; 

12 ‘‘(3) that any record concerning the electronic 

13 surveillance program or the aid furnished or retained 

14 by such carriers, landlords, custodians, or other per15 sons are maintained under security procedures ap16 proved by the Attorney General and the Director of 

17 National Intelligence; and 

18 ‘‘(4) that the applicant compensate, at the pre19 vailing rate, such carriers, landlords, custodians, or 

20 other persons for furnishing such aid.’’. 

21 SEC. 7. CONGRESSIONAL OVERSIGHT. 

22 Title VII of the Foreign Intelligence Surveillance Act 

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

24 at the end the following: 


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1 ‘‘SEC. 705. CONGRESSIONAL OVERSIGHT. 

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

3 days, the Attorney General shall submit to the congres4 sional intelligence committees a report in classified form 

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

6 any electronic surveillance program authorized under this 

7 title. 

8 ‘‘(b) CONTENTS.—Each report submitted under sub9 section (a) shall provide, with respect to the previous 180- 

10 day period, a description of— 

11 ‘‘(1) the minimization procedures implemented; 

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

13 which the surveillance was executed and effected; 

14 ‘‘(3) significant decisions of the Foreign Intel15 ligence Surveillance Court on applications made 

16 under section 703; 

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

18 orders approving electronic surveillance pursuant to 

19 this title; and 

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

21 are granted, modified, or denied. 

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

23 shall be construed to limit the authority or responsibility 

24 of any committee of either House of Congress to obtain 

25 such information as such committee may need to carry 

26 out its respective functions and duties.’’. 


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1 SEC. 8. CLARIFICATION OF THE FOREIGN INTELLIGENCE 

2 SURVEILLANCE ACT OF 1978. 

3 (a) IN GENERAL.—The Foreign Intelligence Surveil4 lance Act of 1978 (50 U.S.C. 1801 et seq.) is amended 

5 by inserting after title VII, as amended by this Act, the 

6 following: 

7 ‘‘TITLE VIII—EXECUTIVE 

8 AUTHORITY 

9 ‘‘SEC. 801. EXECUTIVE AUTHORITY. 

10 ‘‘Nothing in this Act shall be construed to limit the 

11 constitutional authority of the President to collect intel12 ligence with respect to foreign powers and agents of for13 eign powers.’’. 

14 (b) REPEAL.—Sections 111, 309, and 404 of the 

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

16 1811, 1829, and 1844) are repealed. 

17 (c) CONFORMING AMENDMENTS.— 

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

19 United States Code, is amended— 

20 (A) in paragraph (e), by striking ‘‘, as de21 fined in section 101’’ and all that follows 

22 through the end of the paragraph and inserting 

23 the following: ‘‘under the Constitution or the 

24 Foreign Intelligence Surveillance Act of 1978.’’; 

25 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 inserting ‘‘or under the 

13 Constitution’’ after ‘‘authorized by 

14 statute’’; and 

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

16 (ii) in paragraph (2)— 

17 (I) by inserting ‘‘or under the 

18 Constitution’’ after ‘‘authorized by 

19 statute’’; and 

20 (II) by striking the period and 

21 inserting ‘‘; or’’; and 

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

24 ‘‘(3) knowingly discloses or uses information ob25 tained under color of law by electronic surveillance 


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1 in a manner or for a purpose not authorized by 

2 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. OTHER CONFORMING 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 (B), by striking ‘‘or’’ 

16 after the semicolon; and 

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

18 ‘‘(D) otherwise possesses or is expected to 

19 transmit or receive foreign intelligence informa20 tion within the United States; or’’; 

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

22 following: 

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

24 ‘‘(1) the installation or use of an electronic, me25 chanical, or other surveillance device for the intenVerDate Aug 31 2005 23:57 Sep 08, 2006 Jkt 049196 PO 00000 Frm 00025 Fmt 6652 Sfmt 6201 E:\BILLS\S3876.PCS S3876

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1 tional collection of information concerning a par2 ticular known person who is reasonably believed to 

3 be in the United States by intentionally targeting 

4 that person under circumstances in which that per5 son has a reasonable expectation of privacy and a 

6 warrant would be required for law enforcement pur7 poses; or 

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

9 of any communication under circumstances in which 

10 a person has a reasonable expectation of privacy and 

11 a warrant would be required for law enforcement 

12 purposes, and if both the sender and all intended re13 cipients are located within the United States.’’; 

14 (3) in subsection (g), by inserting before the pe15 riod the following: ‘‘or a person or persons des16 ignated by the Attorney General or Acting Attorney 

17 General’’; 

18 (4) in subsection (h)— 

19 (A) in paragraph (2), by inserting ‘‘and’’ 

20 after the semicolon; 

21 (B) in paragraph (3), by striking ‘‘; and’’ 

22 and inserting a period; and 

23 (C) by striking paragraph (4); and 

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

25 following: 


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1 ‘‘(n) ‘contents’ has the meaning set forth in section 

2 2510(8) of title 18, United States Code.’’. 

3 (c) ELECTRONIC SURVEILLANCE AUTHORIZATION.— 

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

5 as follows: 

6 ‘‘ELECTRONIC SURVEILLANCE AUTHORIZATION WITHOUT

7 COURT ORDER; CERTIFICATION BY ATTORNEY GEN8 ERAL; REPORTS TO CONGRESSIONAL COMMITTEES; 

9 TRANSMITTAL UNDER SEAL; DUTIES AND COM10 PENSATION OF COMMUNICATION COMMON CARRIER; 

11 APPLICATIONS; JURISDICTION OF COURT

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

13 President through the Attorney General, may authorize 

14 electronic surveillance without a court order under this 

15 title to acquire foreign intelligence information for periods 

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

17 under oath that— 

18 ‘‘(A)(i) the acquisition of the contents of com19 munications of foreign powers, as defined in section 

20 101(a), an agent of a foreign power as defined in 

21 section 101(b)(1); or 

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

23 other than the spoken communications of individ24 uals, from property or premises under the open and 

25 exclusive control of a foreign power, as defined in 

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


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1 ‘‘(B) the proposed minimization procedures 

2 with respect to such surveillance meet the definition 

3 of minimization procedures under section 101(h); 

4 if the Attorney General reports such minimization proce5 dures and any changes thereto to the Senate Select Com6 mittee on Intelligence and the House Permanent Select 

7 Committee on Intelligence at least 30 days prior to their 

8 effective date, unless the Attorney General determines im9 mediate action is required and notifies the committees im10 mediately of such minimization procedures and the reason 

11 for their becoming effective immediately. 

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

13 subsection may be conducted only in accordance with the 

14 Attorney General’s certification and the minimization pro15 cedures. The Attorney General shall assess compliance 

16 with such procedures and shall report such assessments 

17 to the Senate Select Committee on Intelligence and the 

18 House Permanent Select Committee on Intelligence under 

19 the provisions of section 108(a). 

20 ‘‘(3) The Attorney General shall immediately trans21 mit under seal to the court established under section 

22 103(a) a copy of his certification. Such certification shall 

23 be maintained under security measures established by the 

24 Chief Justice with the concurrence of the Attorney GenVerDate Aug 31 2005 23:57 Sep 08, 2006 Jkt 049196 PO 00000 Frm 00028 Fmt 6652 Sfmt 6201 E:\BILLS\S3876.PCS S3876

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1 eral, in consultation with the Director of National Intel2 ligence, and shall remain sealed unless— 

3 ‘‘(A) an application for a court order with re4 spect to the surveillance is made under section 104; 

5 or 

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

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

8 ‘‘(b) The Attorney General is also authorized to de9 liver to a provider of any electronic communication service, 

10 landlord, custodian, or other person (including any officer, 

11 employee, agent, or other specified person thereof) who 

12 has access to electronic communications, either as they are 

13 transmitted or while they are stored, or equipment that 

14 is being or may be used to transmit or store such commu15 nications, a certificate requiring that such person or per16 sons furnish any information, facilities, or technical assist17 ance to an official authorized by the President to engage 

18 in electronic surveillance for foreign intelligence purposes, 

19 for periods of up to 1 year if the Attorney General certifies 

20 in writing to the carrier under oath that such provision 

21 of information, facilities, or technical assistance does not 

22 constitute electronic surveillance as defined in section 

23 101(f). 

24 ‘‘(c) With respect to electronic surveillance or the fur25 nishing of any information, facilities, or technical assistVerDate Aug 31 2005 23:57 Sep 08, 2006 Jkt 049196 PO 00000 Frm 00029 Fmt 6652 Sfmt 6201 E:\BILLS\S3876.PCS S3876

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1 ance authorized by this section, the Attorney General may 

2 direct a provider of any electronic communication service, 

3 landlord, custodian or other person (including any officer, 

4 employee, agent, or other specified person thereof) who 

5 has access to electronic communications, either as they are 

6 transmitted or while they are stored or equipment that 

7 is being or may be used to transmit or store such commu8 nications to— 

9 ‘‘(1) furnish all information, facilities, or tech10 nical assistance necessary to accomplish the elec11 tronic surveillance in such a manner as will protect 

12 its secrecy and produce a minimum of interference 

13 with the services that such provider of any electronic 

14 communication service, landlord, custodian, or other 

15 person is providing its customers; and 

16 ‘‘(2) maintain under security procedures ap17 proved by the Attorney General and the Director of 

18 National Intelligence any records concerning the sur19 veillance or the aid furnished which such provider of 

20 any electronic communication service, landlord, cus21 todian, or other person wishes to retain. 

22 The Government shall compensate, at the prevailing rate, 

23 such provider of any electronic communication service, 

24 landlord, custodian, or other person for furnishing such 

25 aid. 


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1 ‘‘(d) Electronic surveillance directed solely at the col2 lection of international radio communications of diplomati3 cally immune persons in the United States may be author4 ized by an official authorized by the President to engage 

5 in electronic surveillance for foreign intelligence purposes 

6 in accordance with procedures approved by the Attorney 

7 General.’’. 

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

9 (50 U.S.C. 1803) is amended in subsection (a), by insert10 ing, ‘‘at least’’ before ‘‘seven of the United States Judici11 ary’’. 

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; and 

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.’’; 

24 (2) by striking subsection (b); and 


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

2 as subsections (b) through (d), respectively. 

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

4 U.S.C. 1805) is amended— 

5 (1) in subsection (a), by— 

6 (A) striking paragraph (1); and 

7 (B) redesignating paragraphs (2) through 

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

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

10 and inserting the following: 

11 ‘‘(1) An order approving an electronic surveillance 

12 under this section shall specify— 

13 ‘‘(A) the identity, if known, or a description of 

14 the specific target of the electronic surveillance iden15 tified or described in the application pursuant to sec16 tion 104(a)(3); 

17 ‘‘(B) the nature and location of each of the fa18 cilities or places at which the electronic surveillance 

19 will be directed, if known; and 

20 ‘‘(C) the period of time during which the elec21 tronic surveillance is approved.’’; 

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

23 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 paragraphs (1) and (2) of sub5 section (e) and inserting the following: 

6 ‘‘(1) An order issued under this section may approve 

7 an electronic surveillance may be for a period not to exceed 

8 1 year. If such emergency employment of electronic sur9 veillance is authorized, the official authorizing the emer10 gency employment of electronic surveillance shall require 

11 that the minimization procedures required by this title for 

12 the issuance of a judicial order be followed. 

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

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

15 upon an application for an extension and new findings 

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

17 and may be for a period not to exceed 1 year.’’; 

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

19 following: 

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

21 title, when an official authorized by the President to con22 duct electronic surveillance reasonably determines that— 

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

24 to the employment of electronic surveillance to ob25 tain foreign intelligence information before an order 


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1 authorizing such surveillance can with due diligence 

2 be obtained; and 

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

4 under this title to approve such surveillance exists; 

5 that official may authorize the emergency employment of 

6 electronic surveillance in accordance with paragraph (2). 

7 ‘‘(2) Under paragraph (1), the following require8 ments shall be satisfied: 

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

10 the emergency electronic surveillance. 

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

12 103 shall be informed by the Attorney General or 

13 his designee as soon as practicable following such 

14 authorization that the decision has been made to 

15 employ emergency electronic surveillance. 

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

17 title shall be made to that judge or another judge 

18 having jurisdiction under section 103 as soon as 

19 practicable, but not more than 7 days after such 

20 surveillance is authorized. In the absence of a judi21 cial order approving such electronic surveillance, the 

22 surveillance shall terminate when the information 

23 sought is obtained, when the application for the 

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

25 from the time of emergency authorization, whichever 


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1 is earliest. In the event that such application for ap2 proval is denied, or in any other case where the elec3 tronic surveillance is terminated and no order is 

4 issued approving the surveillance, no information ob5 tained or evidence derived from such surveillance 

6 shall be received in evidence or otherwise disclosed 

7 in any trial, hearing, or other proceeding in or be8 fore any court, grand jury, department, office, agen9 cy, regulatory body, legislative committee, or other 

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

11 subdivision thereof, and no information concerning 

12 any United States person acquired from such sur13 veillance shall subsequently be used or disclosed in 

14 any other manner by Federal officers or employees 

15 without the consent of such person, except with the 

16 approval of the Attorney General if the information 

17 indicates a threat of death or serious bodily harm to 

18 any person. A denial of the application made under 

19 this subsection may be reviewed as provided in sec20 tion 103.’’; and 

21 (6) in subsection (i) by— 

22 (A) striking ‘‘a wire or’’ and inserting 

23 ‘‘any’’; 

24 (B) striking ‘‘chapter’’ and inserting 

25 ‘‘title’’; and 


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

2 to certification by the Attorney General or his 

3 designee seeking information, facilities, or tech4 nical assistance from such person that does not 

5 constitute electronic surveillance as defined in 

6 section 101(f )’’. 

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

8 (50U.S.C. 1806) is amended— 

9 (1) in subsection (i), by— 

10 (A) deleting ‘‘radio’’; and 

11 (B) inserting ‘‘Attorney General deter12 mines that the content’’ after ‘‘contain signifi13 cant foreign intelligence or’’; and 

14 (2) in subsection (k), by deleting ‘‘104(a)(7)’’ 

15 and inserting ‘‘104(a)(6)’’. 

16 (h) CONGRESSIONAL OVERSIGHT.—Section 108 of 

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

18 the following: 

19 ‘‘(c) DOCUMENT MANAGEMENT SYSTEM FOR APPLI20 CATIONS FOR ORDERS APPROVING ELECTRONIC SURVEIL21 LANCE.— 

22 ‘‘(1) SYSTEM PROPOSED.—The Attorney Gen23 eral and Director of National Intelligence shall, in 

24 consultation with the Director of the Federal Bu25 reau of Investigation, the Director of the National 


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1 Security Agency, the Director of the Central Intel2 ligence Agency, and the Foreign Intelligence Surveil3 lance Court, conduct a feasibility study to develop 

4 and implement a secure, classified document man5 agement system that permits the prompt prepara6 tion, modification, and review by appropriate per7 sonnel of the Department of Justice, the Federal 

8 Bureau of Investigation, the National Security 

9 Agency, and other applicable elements of the United 

10 States Government of applications under section 104 

11 before their submittal to the Foreign Intelligence 

12 Surveillance Court. 

13 ‘‘(2) SCOPE OF SYSTEM.—The document man14 agement system proposed in paragraph (1) shall— 

15 ‘‘(A) permit and facilitate the prompt sub16 mittal of applications and all other matters, in17 cluding electronic filings, to the Foreign Intel18 ligence Surveillance Court under section 104 or 

19 105(g)(5); and 

20 ‘‘(B) permit and facilitate the prompt 

21 transmittal of rulings of the Foreign Intel22 ligence Surveillance Court to personnel submit23 ting applications described in paragraph (1).’’. 


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1 (i) CRIMINAL SANCTIONS.—Section 109 of FISA (50 

2 U.S.C. 1809) is amended by striking subsection (a) and 

3 inserting the following: 

4 ‘‘(a) PROHIBITED ACTIVITIES.—A person is guilty of 

5 an offense if he intentionally— 

6 ‘‘(1) engages in electronic surveillance, as de7 fined in section 101(f), under color of law except as 

8 authorized by law; or 

9 ‘‘(2) discloses or uses information obtained 

10 under color of law by electronic surveillance, know11 ing or having reason to know that the information 

12 was obtained through electronic surveillance not au13 thorized by law.’’. 

14 (j) AUTHORIZATION DURING TIME OF WAR.—Title 

15 I of FISA is amended by striking section 111. 

16 (k) PHYSICAL SEARCHES.—Title III of Foreign Intel17 ligence Surveillance Act of 1978 (50 U.S.C. 1821 et seq.) 

18 is amended— 

19 (1) in section 301 (50 U.S.C. 1821), by striking 

20 paragraph (5) and inserting the following: 

21 ‘‘(5) ‘Physical search’ means any physical intru22 sion within the United States into premises or prop23 erty (including examination of the interior of prop24 erty by technical means) that is intended to result 

25 in a seizure, reproduction, inspection, or alteration 


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1 of information, material, or property, under cir2 cumstances in which a person has a reasonable ex3 pectation of privacy and a warrant would be re4 quired for law enforcement purposes, but does not 

5 include activities conducted in accordance with sec6 tions 102 or 105.’’; 

7 (2) in section 307, by striking subsection (a) 

8 and inserting the following: 

9 ‘‘(a) A person is guilty of an offense if he inten10 tionally— 

11 ‘‘(1) under color of law for the purpose of ob12 taining foreign intelligence information, executes a 

13 physical search within the United States except as 

14 authorized by statute or under the Constitution; or 

15 ‘‘(2) discloses or uses information obtained 

16 under color of law by physical search within the 

17 United States, knowing or having reason to know 

18 that the information was obtained through physical 

19 search not authorized by statute or the Constitu20 tion.’’; and 

21 (3) by striking section 309. 

22 SEC. 10. CONFORMING AMENDMENT TO TABLE OF CON23 TENTS. 

24 The table of contents for the Foreign Intelligence 

25 Surveillance Act of 1978 is amended by striking the items 


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1 related to title VII and section 701 and inserting the fol2 lowing: 

‘‘TITLE VII—ELECTRONIC SURVEILLANCE 

‘‘Sec. 701. Definition. 

‘‘Sec. 702. Foreign intelligence surveillance court jurisdiction to review electronic surveillance programs. 

‘‘Sec. 703. Applications for approval of electronic surveillance programs. 

‘‘Sec. 704. Approval of electronic surveillance programs. 

‘‘Sec. 705. Congressional oversight. 

‘‘TITLE VIII—EXECUTIVE AUTHORITY 

‘‘Sec. 801. Executive authority.’’. 


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Calendar No. 599 

109TH CONGRESS 

2D SESSION S. 3876 

A BILL 

Entitled The National Security Surveillance Act. 

SEPTEMBER 8, 2006 

Read the second time and placed on the calendar 


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