I 
109TH CONGRESS 
2D SESSION 
H. R. 5825 
To update the Foreign Intelligence Surveillance Act of 1978. 
IN THE HOUSE OF REPRESENTATIVES 
JULY 18, 2006 
Mrs. WILSON of New Mexico (for herself, Mr. SENSENBRENNER, Mr. HOEK-
STRA, Mr. RENZI, Mrs. JOHNSON of Connecticut, Mr. EVERETT, Mr. 
THORNBERRY, Mr. ROGERS of Michigan, Mr. GALLEGLY, and Mr. ISSA) 
introduced the following bill; which was referred to the Committee on the 
Judiciary, and in addition to the Select Committee on Intelligence (Per-
manent Select), for a period to be subsequently determined by the Speak-
er, in each case for consideration of such provisions as fall within the ju-
risdiction of the committee concerned 
A BILL 
To update the Foreign Intelligence Surveillance Act of 1978. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Electronic Surveillance 
Modernization Act’’. 
SEC. 2. FISA DEFINITIONS. 
(a) AGENT
OF
A FOREIGN POWER.—Subsection 
(b)(1) of section 101 of the Foreign Intelligence Surveil-
lance Act of 1978 (50 U.S.C. 1801) is amended— 
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(1) in subparagraph (B), by striking ‘‘; or’’ and 
inserting ‘‘;’’; and 
(2) by adding at the end the following new sub-
paragraph: 
‘‘(D) possesses or is reasonably expected to 
transmit or receive foreign intelligence informa-
tion while in the United States; or’’. 
(b) ELECTRONIC SURVEILLANCE.—Subsection (f) of 
such section is amended to read as follows: 
‘‘(f) ‘Electronic surveillance’ means— 
‘‘(1) the installation or use of a surveillance de-
vice for the intentional collection of information re-
lating to a person who is reasonably believed to be 
in the United States by intentionally targeting that 
person, under circumstances in which the person has 
a reasonable expectation of privacy and a warrant 
would be required for law enforcement purposes; or 
‘‘(2) the intentional acquisition of the contents 
of any communication, without the consent of a 
party to the communication, under circumstances in 
which a person has a reasonable expectation of pri-
vacy and a warrant would be required for law en-
forcement purposes, if both the sender and all in-
tended recipients are located within the United 
States.’’. 
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(c) MINIMIZATION PROCEDURES.—Subsection (h) of 
such section is amended— 
(1) in paragraph (2), by striking ‘‘importance;’’ 
and inserting ‘‘importance; and’’; 
(2) in paragraph (3), by striking ‘‘; and’’ and 
inserting ‘‘.’’; and 
(3) by striking paragraph (4). 
(d) WIRE COMMUNICATION AND SURVEILLANCE DE-
VICE.—Subsection (l) of such section is amended to read 
as follows: 
‘‘(l) ‘Surveillance device’ is a device that allows sur-
veillance by the Federal Government, but excludes any de-
vice that extracts or analyzes information from data that 
has already been acquired by the Federal Government by 
lawful means.’’. 
(e) PHYSICAL SEARCH.—Section 301(5) of the For-
eign Intelligence Surveillance Act of 1978 (50 U.S.C. 
1821(5)) is amended by striking ‘‘Act, or (B)’’ and insert-
ing ‘‘Act, (B) activities described in section 102(b) of this 
Act, or (C)’’. 
SEC. 3. AUTHORIZATION FOR ELECTRONIC SURVEILLANCE 
FOR FOREIGN INTELLIGENCE PURPOSES. 
Section 102 of the Foreign Intelligence Surveillance 
Act of 1978 (50 U.S.C. 1802) is amended— 
(1) in subsection (a)(1)— 
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(A) in subparagraph (A)— 
(i) in clause (i), by striking ‘‘trans-
mitted by means of’’ and all that follows 
and inserting ‘‘of a foreign power, as de-
fined in paragraph (1), (2), or (3) of sec-
tion 101(a), or an agent of a foreign 
power, as defined in section 101(b)(1); or’’; 
and 
(ii) in clause (ii), by striking ‘‘or (3);’’ 
and inserting ‘‘or (3); and’’; 
(B) by striking subparagraph (B); and 
(C) by redesignating subparagraph (C) as 
subparagraph (B); 
(2) by striking subsection (a)(4); 
(3) in subsection (b), to read as follows: 
‘‘(b)(1) The Attorney General may require, by writ-
ten certification, any person with authorized access to 
electronic communications or equipment used to transmit 
or store electronic communications to provide information, 
facilities, or technical assistance— 
‘‘(A) necessary to accomplish electronic surveil-
lance authorized under subsection (a); or 
‘‘(B) to an official designated by the President 
for a period of up to one year, provided the Attorney 
General certifies in writing, under oath, that the 
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provision of the information, facilities, or technical 
assistance does not constitute electronic surveillance. 
‘‘(2) The Attorney General may require a person pro-
viding information, facilities, or technical assistance under 
paragraph (1) to— 
‘‘(A) provide the information, facilities, or tech-
nical assistance in such a manner as will protect the 
secrecy of the provision of such information, facili-
ties, or technical assistance and produce a minimum 
of interference with the services that such person is 
providing the customers of such person; and 
‘‘(B) maintain under security procedures ap-
proved by the Attorney General and the Director of 
National Intelligence any records concerning such 
electronic surveillance or the information, facilities, 
or technical assistance provided which such person 
wishes to retain. 
‘‘(3) The Government shall compensate, at the pre-
vailing rate, a person for providing information, facilities, 
or technical assistance pursuant to paragraph (1).’’; and 
(4) by adding at the end the following new sub-
section: 
‘‘(c) Notwithstanding any other provision of law, the 
President may designate an official who may authorize 
electronic surveillance of international radio communica-
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tions of a diplomat or diplomatic mission or post of the 
government of a foreign country in the United States in 
accordance with procedures approved by the Attorney 
General.’’. 
SEC. 4. APPLICATIONS FOR COURT ORDERS. 
Section 104 of the Foreign Intelligence Surveillance 
Act of 1978 (50 U.S.C. 1804) is amended— 
(1) in subsection (a)— 
(A) by striking paragraphs (6), (9), and 
(11); 
(B) by redesignating paragraphs (7), (8), 
and (10) as paragraphs (6), (7), and (8), re-
spectively; 
(C) in paragraph (6), as redesignated by 
subparagraph (B)— 
(i) in the matter preceding subpara-
graph (A), by striking ‘‘or officials des-
ignated’’ and all that follows through ‘‘con-
sent of the Senate’’ and inserting ‘‘des-
ignated by the President to authorize elec-
tronic surveillance for foreign intelligence 
purposes’’; 
(ii) in subparagraph (C), by striking 
‘‘techniques;’’ and inserting ‘‘techniques; 
and’’; 
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(iii) by striking subparagraphs (D) 
and (E) and inserting the following: 
‘‘(D) including a statement of the basis for 
the certification that the information sought is 
the type of foreign intelligence information des-
ignated;’’; 
(D) in paragraph (7), as redesignated by 
subparagraph (B)— 
(i) by striking ‘‘a statement of the 
means by which the surveillance will be ef-
fected and’’; and 
(ii) by adding ‘‘and’’ at the end; and 
(E) in paragraph (8), as redesignated by 
subparagraph (B), by striking ‘‘; and’’ and in-
serting a period; 
(2) by striking subsection (b); and 
(3) by redesignating subsections (c), (d), and 
(e) as subsections (b), (c), and (d), respectively. 
SEC. 5. ISSUANCE OF AN ORDER. 
Section 105 of the Foreign Intelligence Surveillance 
Act of 1978 (50 U.S.C. 1805) is amended— 
(1) in subsection (a)— 
(A) by striking paragraph (1); and 
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(B) by redesignating paragraphs (2), (3), 
(4), and (5) as paragraphs (1), (2), (3), and 
(4), respectively; 
(2) in subsection (c)(1)— 
(A) in subparagraph (B), by striking 
‘‘known;’’ and inserting ‘‘known; and’’; 
(B) by striking subparagraphs (C), (D), 
and (F); 
(C) by redesignating subparagraph (E) as 
subparagraph (C); and 
(D) in subparagraph (C), as redesignated 
by subparagraph (C), by striking ‘‘approved; 
and’’ and inserting ‘‘approved.’’; 
(3) by striking subsection (d); 
(4) by redesignating subsections (e), (f), (g), 
(h), and (i) as subsections (d), (e), (f), (g), and (h), 
respectively; 
(5) in subsection (d), as redesignated by para-
graph (4)— 
(A) in paragraph (1), by striking ‘‘for the 
period necessary’’ and all that follows and in-
sert ‘‘for a period not to exceed one year.’’; and 
(B) in paragraph (2), by striking ‘‘original 
order, except that’’ and all that follows and in-
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serting ‘‘original order for a period not to ex-
ceed one year.’’; 
(6) in subsection (e), as redesignated by para-
graph (4), to read as follows: 
‘‘(e) Notwithstanding any other provision of this title, 
the Attorney General may authorize the emergency em-
ployment of electronic surveillance if the Attorney Gen-
eral— 
‘‘(1) determines that an emergency situation ex-
ists with respect to the employment of electronic 
surveillance to obtain foreign intelligence informa-
tion before an order authorizing such surveillance 
can with due diligence be obtained; 
‘‘(2) determines that the factual basis for 
issuance of an order under this title to approve such 
surveillance exists; 
‘‘(3) informs a judge having jurisdiction under 
section 103 at the time of such authorization that 
the decision has been made to employ emergency 
electronic surveillance; and 
‘‘(4) makes an application in accordance with 
this title to a judge having jurisdiction under section 
103 as soon as practicable, but not more than 120 
hours after the official authorizes such surveillance. 
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If the Attorney General authorizes such emergency em-
ployment of electronic surveillance, the Attorney General 
shall require that the minimization procedures required by 
this title for the issuance of a judicial order be followed. 
In the absence of a judicial order approving such electronic 
surveillance, the surveillance shall terminate when the in-
formation sought is obtained, when the application for the 
order is denied, or after the expiration of 120 hours from 
the time of authorization by the Attorney General, which-
ever is earliest. In the event that such application for ap-
proval is denied, or in any other case where the electronic 
surveillance is terminated and no order is issued approving 
the surveillance, no information obtained or evidence de-
rived from such surveillance shall be received in evidence 
or otherwise disclosed in any trial, hearing, or other pro-
ceeding in or before any court, grand jury, department, 
office, agency, regulatory body, legislative committee, or 
other authority of the United States, a State, or political 
subdivision thereof, and no information concerning any 
United States person acquired from such surveillance shall 
subsequently be used or disclosed in any other manner by 
Federal officers or employees without the consent of such 
person, except with the approval of the Attorney General 
if the information indicates a threat of death or serious 
bodily harm to any person. A denial of the application 
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made under this subsection may be reviewed as provided 
in section 103.’’; and 
(7) in subsection (h), as redesignated by para-
graph (4)— 
(A) by striking ‘‘in accordance with a court 
order’’ and all that follows and inserting ‘‘—’’; 
and 
(B) by adding at the end the following new 
paragraphs: 
‘‘(1) in accordance with a court order or re-
quest for emergency assistance under this Act for 
electronic surveillance or physical search; or 
‘‘(2) in response to a certification by the Attor-
ney General or a designee of the Attorney General 
seeking information, facilities, or technical assistance 
from such person that does not constitute electronic 
surveillance.’’. 
SEC. 6. USE OF INFORMATION. 
Section 106(i) of the Foreign Intelligence Surveil-
lance Act of 1978 (50 U.S.C. 1806(i)) is amended— 
(1) by striking ‘‘radio communication’’ and in-
serting ‘‘communication’’; and 
(2) by striking ‘‘contents indicates’’ and insert-
ing ‘‘contents contain significant foreign intelligence 
information or indicate’’. 
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SEC. 7. AUTHORIZATION AFTER AN ARMED ATTACK. 
(a) ELECTRONIC SURVEILLANCE.—Section 111 of 
the Foreign Intelligence Surveillance Act of 1978 (50 
U.S.C. 1811) is amended by striking ‘‘for a period not 
to exceed’’ and all that follows and inserting the following: 
‘‘for a period not to exceed 60 days following an armed 
attack against the territory of the United States if the 
President submits to each member of the congressional in-
telligence committee notification of the authorization 
under this section.’’. 
(b) PHYSICAL SEARCH.—Section 309 of such Act (50 
U.S.C. 1829) is amended by striking ‘‘for a period not 
to exceed’’ and all that follows and inserting the following: 
‘‘for a period not to exceed 60 days following an armed 
attack against the territory of the United States if the 
President submits to each member of the congressional in-
telligence committee notification of the authorization 
under this section.’’. 
SEC. 8. AUTHORIZATION OF ELECTRONIC SURVEILLANCE 
AFTER A TERRORIST ATTACK. 
The Foreign Intelligence Surveillance Act of 1978 
(50 U.S.C. 1801 et seq.) is further amended— 
(1) by adding at the end of title I the following 
new section: 
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‘‘AUTHORIZATION FOLLOWING A TERRORIST ATTACK 
UPON THE UNITED STATES 
‘‘SEC. 112. (a) IN GENERAL.—Notwithstanding any 
other provision of law, but subject to subsection (d), the 
President, acting through the Attorney General, may au-
thorize electronic surveillance without an order under this 
title to acquire foreign intelligence information for a pe-
riod not to exceed 45 days following a terrorist attack 
against the United States if the President submits a noti-
fication to each member of the congressional intelligence 
committees and a judge having jurisdiction under section 
103 that— 
‘‘(1) the United States has been the subject of 
a terrorist attack; and 
‘‘(2) identifies the terrorist organizations or af-
filiates of terrorist organizations believed to be re-
sponsible for the terrorist attack. 
‘‘(b) SUBSEQUENT
CERTIFICATIONS.—Subject to 
subsection (d), at the end of the 45-day period described 
in subsection (a), and every 45 days thereafter, the Presi-
dent may submit a subsequent certification to each mem-
ber of the congressional intelligence committees and a 
judge having jurisdiction under section 103 that the cir-
cumstances of the terrorist attack for which the President 
submitted a certification under subsection (a) require the 
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President to continue the authorization of electronic sur-
veillance under this section for an additional 45 days. The 
President shall be authorized to conduct electronic surveil-
lance under this section for an additional 45 days after 
each such subsequent certification. 
‘‘(c) ELECTRONIC
SURVEILLANCE
OF
INDIVID-
UALS.—The President, or an official designated by the 
President to authorize electronic surveillance, may only 
conduct electronic surveillance of a person under this sub-
section when the President or such official determines 
that— 
‘‘(1) there is a reasonable belief that such per-
son is communicating with a terrorist organization 
or an affiliate of a terrorist organization that is rea-
sonably believed to be responsible for the terrorist 
attack; and 
‘‘(2) the information obtained from the elec-
tronic surveillance may be foreign intelligence infor-
mation. 
‘‘(d) MINIMIZATION PROCEDURES.—The President 
may not authorize electronic surveillance under this sec-
tion until the Attorney General approves minimization 
procedures for electronic surveillance conducted under this 
section. 
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‘‘(e) UNITED STATES PERSONS.—Notwithstanding 
subsection (b), the President may not authorize electronic 
surveillance of a United States person under this section 
without an order under this title for a period of more than 
90 days unless the President, acting through the Attorney 
General, submits a certification to each member of the 
congressional intelligence committees that— 
‘‘(1) the continued electronic surveillance of the 
United States person is vital to the national security 
of the United States; 
‘‘(2) describes the circumstances that have pre-
vented the Attorney General from obtaining an order 
under this title for continued surveillance; 
‘‘(3) describes the reasons for believing the 
United States person is affiliated with or in commu-
nication with a terrorist organization or affiliate of 
a terrorist organization that is reasonably believed to 
be responsible for the terrorist attack; and 
‘‘(4) describes the foreign intelligence informa-
tion derived from the electronic surveillance con-
ducted under this section. 
‘‘(f) USE OF INFORMATION.—Information obtained 
pursuant to electronic surveillance under this subsection 
may be used to obtain an order authorizing subsequent 
electronic surveillance under this title. 
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‘‘(g) REPORTS.—Not later than 14 days after the 
date on which the President submits a certification under 
subsection (a), and every 30 days thereafter until the 
President ceases to authorize electronic surveillance under 
subsection (a) or (b), the President shall submit to each 
member of the congressional intelligence committees a re-
port on the electronic surveillance conducted under this 
section, including— 
‘‘(1) a description of each target of electronic 
surveillance under this section; and 
‘‘(2) the basis for believing that each target is 
in communication with a terrorist organization or an 
affiliate of a terrorist organization. 
‘‘(h) CONGRESSIONAL INTELLIGENCE COMMITTEES 
DEFINED.—In this section, the term ‘congressional intel-
ligence committees’ means the Permanent Select Com-
mittee on Intelligence of the House of Representatives and 
the Select Committee on Intelligence of the Senate.’’; and 
(2) in the table of contents in the first section, 
by inserting after the item relating to section 111 
the following new item: 
‘‘Sec. 112. Authorization following a terrorist attack upon the United States.’’. 
SEC. 9. CONGRESSIONAL OVERSIGHT. 
(a) ELECTRONIC SURVEILLANCE UNDER FISA.— 
Section 108 of the Foreign Intelligence Surveillance Act 
of 1978 (50 U.S.C. 1808) is amended— 
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(1) in subsection (a)(1), by inserting ‘‘each 
member of’’ before ‘‘the House Permanent Select 
Committee on Intelligence’’; and 
(2) in subsection (a)(2)— 
(A) in subparagraph (B), by striking 
‘‘and’’ at the end; 
(B) in subparagraph (C), by striking the 
final period and inserting ‘‘; and’’; and 
(C) by adding at the end the following new 
subparagraph: 
‘‘(D) the authority under which the elec-
tronic surveillance is conducted.’’; and 
(3) in subsection (a), by adding at the end the 
following new paragraph: 
‘‘(3) Each report submitted under this sub-
section shall include reports on electronic surveil-
lance conducted without a court order.’’. 
(b) INTELLIGENCE ACTIVITIES.—Section 501 of the 
National Security Act of 1947 (50 U.S.C. 413) is amend-
ed— 
(1) in subsection (a)(1), by inserting ‘‘each 
member of’’ before ‘‘the congressional intelligence 
committees’’; and 
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(2) in subsection (b), by inserting ‘‘each mem-
ber of’’ before ‘‘the congressional intelligence com-
mittees’’. 
SEC. 10. TECHNICAL AND CONFORMING AMENDMENTS. 
The Foreign Intelligence Surveillance Act of 1978 
(50 U.S.C. 1801 et seq.) is further amended— 
(1) 
in 
section 
102(a)(3)(A), 
by 
striking 
‘‘101(h)(4) and’’; 
(2) in section 105(a)(5)— 
(A) by striking ‘‘104(a)(7)(E)’’ and insert-
ing ‘‘104(a)(6)(D)’’; and 
(B) by striking ‘‘104(d)’’ and inserting 
‘‘104(c)’’; 
(3) in section 106— 
(A) in subsection (j) in the matter pre-
ceding paragraph (1), by striking ‘‘105(e)’’ and 
inserting ‘‘105(d)’’; and 
(B) in subsection (k)(2), by striking 
‘‘104(a)(7)(B)’’ and inserting ‘‘104(a)(6)(B)’’; 
and 
(4) 
in 
section 
108(a)(2)(C), 
by 
striking 
‘‘105(f)’’ and inserting ‘‘105(e)’’. 
Æ 
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