109TH CONGRESS 
2D SESSION 
H. R. 5825
AN ACT 
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—
(1) in subparagraph (B), by striking ‘‘; or’’ and 
inserting ‘‘;’’; and 
(2) by adding at the end the following: 
‘‘(D) is reasonably expected to possess, 
control, transmit, or receive foreign intelligence 
information while such person is in the United 
States, provided that the official making the 
certification required by section 104(a)(7) 
deems such foreign intelligence information to 
be significant; 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 an electronic, me-
chanical, or other surveillance device for acquiring 
information by intentionally directing surveillance at 
a particular known person who is reasonably believed 
to be in the United States under circumstances in 
which that person has a reasonable expectation of
privacy and a warrant would be required for law en-
forcement purposes; or 
‘‘(2) the intentional acquisition of the contents 
of any communication under circumstances in which 
a person has a reasonable expectation of privacy and 
a warrant would be required for law enforcement 
purposes, if both the sender and all intended recipi-
ents are reasonably believed to be located within the 
United States.’’. 
(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) CONTENTS.—Subsection (n) of such section is 
amended to read as follows: 
‘‘(n) ‘Contents’, when used with respect to a commu-
nication, includes any information concerning the sub-
stance, purport, or meaning of that communication.’’. 
SEC. 3. AUTHORIZATION FOR ELECTRONIC SURVEILLANCE 
AND OTHER ACQUISITIONS FOR FOREIGN IN-
TELLIGENCE PURPOSES. 
(a) IN GENERAL.—The Foreign Intelligence Surveil-
lance Act of 1978 (50 U.S.C. 1801 et seq.) is further 
amended by striking section 102 and inserting the fol-
lowing: 
‘‘AUTHORIZATION FOR ELECTRONIC SURVEILLANCE FOR 
FOREIGN INTELLIGENCE PURPOSES 
‘‘SEC. 102. (a) IN GENERAL.—Notwithstanding any 
other law, the President, acting through the Attorney Gen-
eral, may authorize electronic surveillance without a court 
order under this title to acquire foreign intelligence infor-
mation for periods of up to one year if the Attorney Gen-
eral certifies in writing under oath that—
‘‘(1) the electronic surveillance is directed at—
‘‘(A) the acquisition of the contents of 
communications of foreign powers, as defined in 
paragraph (1), (2), or (3) of section 101(a), or 
an agent of a foreign power, as defined in sub-
paragraph (A) or (B) of section 101(b)(1); or
‘‘(B) the acquisition of technical intel-
ligence, other than the spoken communications 
of individuals, from property or premises under 
the open and exclusive control of a foreign 
power, as defined in paragraph (1), (2), or (3) 
of section 101(a); and 
‘‘(2) the proposed minimization procedures with 
respect to such surveillance meet the definition of 
minimization procedures under section 101(h); 
if the Attorney General reports such minimization proce-
dures and any changes thereto to the Permanent Select 
Committee on Intelligence of the House of Representatives 
and the Select Committee on Intelligence of the Senate 
at least 30 days prior to the effective date of such mini-
mization procedures, unless the Attorney General deter-
mines immediate action is required and notifies the com-
mittees immediately of such minimization procedures and 
the reason for their becoming effective immediately. 
‘‘(b) MINIMIZATION PROCEDURES.—An electronic 
surveillance authorized by this subsection may be con-
ducted only in accordance with the Attorney General’s cer-
tification and the minimization procedures. The Attorney 
General shall assess compliance with such procedures and 
shall report such assessments to the Permanent Select 
Committee on Intelligence of the House of Representatives
and the Select Committee on Intelligence of the Senate 
under the provisions of section 108(a). 
‘‘(c) SUBMISSION OF CERTIFICATION.—The Attorney 
General shall immediately transmit under seal to the court 
established under section 103(a) a copy of his certifi-
cation. Such certification shall be maintained under secu-
rity measures established by the Chief Justice with the 
concurrence of the Attorney General, in consultation with 
the Director of National Intelligence, and shall remain 
sealed unless—
‘‘(1) an application for a court order with respect to 
the surveillance is made under section 104; or 
‘‘(2) the certification is necessary to determine the 
legality of the surveillance under section 106(f). 
‘‘AUTHORIZATION FOR ACQUISITION OF FOREIGN 
INTELLIGENCE INFORMATION 
‘‘SEC. 102A. (a) IN GENERAL.—Notwithstanding 
any other law, the President, acting through the Attorney 
General may, for periods of up to one year, authorize the 
acquisition of foreign intelligence information concerning 
a person reasonably believed to be outside the United 
States if the Attorney General certifies in writing under 
oath that—
‘‘(1) the acquisition does not constitute elec-
tronic surveillance;
‘‘(2) the acquisition involves obtaining the for-
eign intelligence information from or with the assist-
ance of a wire or electronic communications service 
provider, custodian, or other person (including any 
officer, employee, agent, or other specified person of 
such service provider, custodian, or other person) 
who has access to wire or electronic communications, 
either as they are transmitted or while they are 
stored, or equipment that is being or may be used 
to transmit or store such communications; 
‘‘(3) a significant purpose of the acquisition is 
to obtain foreign intelligence information; and 
‘‘(4) the proposed minimization procedures with 
respect to such acquisition activity meet the defini-
tion of minimization procedures under section 
101(h). 
‘‘(b) SPECIFIC PLACE NOT REQUIRED.—A certifi-
cation under subsection (a) is not required to identify the 
specific facilities, places, premises, or property at which 
the acquisition of foreign intelligence information will be 
directed. 
‘‘(c) SUBMISSION OF CERTIFICATION.—The Attorney 
General shall immediately transmit under seal to the court 
established under section 103(a) a copy of a certification 
made under subsection (a). Such certification shall be
maintained under security measures established by the 
Chief Justice of the United States and the Attorney Gen-
eral, in consultation with the Director of National Intel-
ligence, and shall remain sealed unless the certification is 
necessary to determine the legality of the acquisition 
under section 102B. 
‘‘(d) MINIMIZATION PROCEDURES.—An acquisition 
under this section may be conducted only in accordance 
with the certification of the Attorney General and the 
minimization procedures adopted by the Attorney General. 
The Attorney General shall assess compliance with such 
procedures and shall report such assessments to the Per-
manent Select Committee on Intelligence of the House of 
Representatives and the Select Committee on Intelligence 
of the Senate under section 108(a). 
‘‘DIRECTIVES RELATING TO ELECTRONIC SURVEILLANCE 
AND
OTHER
ACQUISITIONS
OF
FOREIGN
INTEL-
LIGENCE INFORMATION 
‘‘SEC. 102B. (a) DIRECTIVE.—With respect to an au-
thorization of electronic surveillance under section 102 or 
an authorization of an acquisition under section 102A, the 
Attorney General may direct a person to—
‘‘(1) immediately provide the Government with 
all information, facilities, and assistance necessary 
to accomplish the acquisition of foreign intelligence 
information in such a manner as will protect the se-
crecy of the electronic surveillance or acquisition and 
produce a minimum of interference with the services 
that such person is providing to the target; and 
‘‘(2) maintain under security procedures ap-
proved by the Attorney General and the Director of 
National Intelligence any records concerning the 
electronic surveillance or acquisition or the aid fur-
nished that such person wishes to maintain. 
‘‘(b) COMPENSATION.—The Government shall com-
pensate, at the prevailing rate, a person for providing in-
formation, facilities, or assistance pursuant to subsection 
(a). 
‘‘(c) FAILURE TO COMPLY.—In the case of a failure 
to comply with a directive issued pursuant to subsection 
(a), the Attorney General may petition the court estab-
lished under section 103(a) to compel compliance with the 
directive. The court shall issue an order requiring the per-
son or entity to comply with the directive if it finds that 
the directive was issued in accordance with section 102(a) 
or 102A(a) and is otherwise lawful. Failure to obey an 
order of the court may be punished by the court as con-
tempt of court. Any process under this section may be 
served in any judicial district in which the person or entity 
may be found.
‘‘(d) REVIEW OF PETITIONS.—(1) IN GENERAL.—
(A) CHALLENGE.—A person receiving a directive issued 
pursuant to subsection (a) may challenge the legality of 
that directive by filing a petition with the pool established 
under section 103(e)(1). 
‘‘(B) ASSIGNMENT OF JUDGE.—The presiding judge 
designated pursuant to section 103(b) shall assign a peti-
tion filed under subparagraph (A) to one of the judges 
serving in the pool established by section 103(e)(1). Not 
later than 24 hours after the assignment of such petition, 
the assigned judge shall conduct an initial review of the 
directive. If the assigned judge determines that the peti-
tion is frivolous, the assigned judge shall deny the petition 
and affirm the directive or any part of the directive that 
is the subject of the petition. If the assigned judge deter-
mines the petition is not frivolous, the assigned judge 
shall, within 72 hours, consider the petition in accordance 
with the procedures established under section 103(e)(2) 
and provide a written statement for the record of the rea-
sons for any determination under this subsection. 
‘‘(2) STANDARD OF REVIEW.—A judge considering a 
petition to modify or set aside a directive may grant such 
petition only if the judge finds that such directive does 
not meet the requirements of this section or is otherwise 
unlawful. If the judge does not modify or set aside the
directive, the judge shall affirm such directive, and order 
the recipient to comply with such directive. 
‘‘(3) DIRECTIVES NOT MODIFIED.—Any directive not 
explicitly modified or set aside under this subsection shall 
remain in full effect. 
‘‘(e) APPEALS.—The Government or a person receiv-
ing a directive reviewed pursuant to subsection (d) may 
file a petition with the court of review established under 
section 103(b) for review of the decision issued pursuant 
to subsection (d) not later than 7 days after the issuance 
of such decision. Such court of review shall have jurisdic-
tion to consider such petitions and shall provide for the 
record a written statement of the reasons for its decision. 
On petition by the Government or any person receiving 
such directive for a writ of certiorari, the record shall be 
transmitted under seal to the Supreme Court, which shall 
have jurisdiction to review such decision. 
‘‘(f) PROCEEDINGS.—Judicial proceedings under this 
section shall be concluded as expeditiously as possible. The 
record of proceedings, including petitions filed, orders 
granted, and statements of reasons for decision, shall be 
maintained under security measures established by the 
Chief Justice of the United States, in consultation with 
the Attorney General and the Director of National Intel-
ligence.
‘‘(g) SEALED PETITIONS.—All petitions under this 
section shall be filed under seal. In any proceedings under 
this section, the court shall, upon request of the Govern-
ment, review ex parte and in camera any Government sub-
mission, or portions of a submission, which may include 
classified information. 
‘‘(h) LIABILITY.—No cause of action shall lie in any 
court against any person for providing any information, 
facilities, or assistance in accordance with a directive 
under this section. 
‘‘(i) USE OF INFORMATION.—Information acquired 
pursuant to a directive by the Attorney General under this 
section concerning any United States person may be used 
and disclosed by Federal officers and employees without 
the consent of the United States person only in accordance 
with the minimization procedures required by section 
102(a) or 102A(a). No otherwise privileged communica-
tion obtained in accordance with, or in violation of, the 
provisions of this section shall lose its privileged character. 
No information from an electronic surveillance under sec-
tion 102 or an acquisition pursuant to section 102A may 
be used or disclosed by Federal officers or employees ex-
cept for lawful purposes. 
‘‘(j) USE IN LAW ENFORCEMENT.—No information 
acquired pursuant to this section shall be disclosed for law
enforcement purposes unless such disclosure is accom-
panied by a statement that such information, or any infor-
mation derived from such information, may only be used 
in a criminal proceeding with the advance authorization 
of the Attorney General. 
‘‘(k) DISCLOSURE IN TRIAL.—If the Government in-
tends to enter into evidence or otherwise use or disclose 
in any trial, hearing, or other proceeding in or before any 
court, department, officer, agency, regulatory body, or 
other authority of the United States, against an aggrieved 
person, any information obtained or derived from an elec-
tronic surveillance conducted under section 102 or an ac-
quisition authorized pursuant to section 102A, the Gov-
ernment shall, prior to the trial, hearing, or other pro-
ceeding or at a reasonable time prior to an effort to dis-
close or use that information or submit it in evidence, no-
tify the aggrieved person and the court or other authority 
in which the information is to be disclosed or used that 
the Government intends to disclose or use such informa-
tion. 
‘‘(l) DISCLOSURE IN STATE TRIALS.—If a State or 
political subdivision of a State intends to enter into evi-
dence or otherwise use or disclose in any trial, hearing, 
or other proceeding in or before any court, department, 
officer, agency, regulatory body, or other authority of a
State or a political subdivision of a State, against an ag-
grieved person, any information obtained or derived from 
an electronic surveillance authorized pursuant to section 
102 or an acquisition authorized pursuant to section 
102A, the State or political subdivision of such State shall 
notify the aggrieved person, the court, or other authority 
in which the information is to be disclosed or used and 
the Attorney General that the State or political subdivision 
intends to disclose or use such information. 
‘‘(m) MOTION
TO EXCLUDE EVIDENCE.—(1) IN 
GENERAL.—Any person against whom evidence obtained 
or derived from an electronic surveillance authorized pur-
suant to section 102 or an acquisition authorized pursuant 
to section 102A is to be, or has been, used or disclosed 
in any trial, hearing, or other proceeding in or before any 
court, department, officer, agency, regulatory body, or 
other authority of the United States, a State, or a political 
subdivision thereof, may move to suppress the evidence ob-
tained or derived from such electronic surveillance or such 
acquisition on the grounds that—
‘‘(A) the information was unlawfully acquired; 
or 
‘‘(B) the electronic surveillance or acquisition 
was not properly made in conformity with an au-
thorization under section 102(a) or 102A(a).