mation, material, or property to be seized, repro-
duced, or altered;
‘‘(4) a statement of the facts and circumstances
relied upon by the applicant to justify the appli-
cant’s belief that—
‘‘(A) the target of the physical search is a
foreign power or an agent of a foreign power;
‘‘(B) the premises or property to be
searched contains foreign intelligence informa-
tion;
‘‘(C) the premises or property to be
searched is owned, used, possessed by, or is in
transit to or from a foreign power or an agent
of a foreign power;
‘‘(5) a statement of the proposed minimization
procedures;
‘‘(6) a statement of the manner in which the
physical search is to be conducted;
‘‘(7) a statement of the facts concerning all pre-
vious applications that have been made to any judge
under this title involving any of the persons, prem-
ises, or property specified in the application, and the
action taken on each previous applications;
‘‘(8) a statement of the facts concerning any
search described in section 406(b), below, which in-
volves any of the persons, premises, or property
specified in the application; and
‘‘(9) a statement that the purpose of the phys-
ical search is to obtain foreign intelligence informa-
tion.
‘‘(b) The judge may require the applicant to furnish
such other information as may be necessary to make the
determinations required by section 403.
‘‘ISSUANCE OF AN ORDER
‘‘SEC. 403. (a) Upon an application made pursuant
to section 402, the judge shall enter an ex parte order
as requested or as modified approving the physical search
if the judge finds that—
‘‘(1) the President has authorized the Attorney
General to approve applications for physical searches
for foreign intelligence purposes;
‘‘(2) the application has been made by a Fed-
eral officer and approved by the Attorney General;
‘‘(3) on the basis of the facts submitted by the
applicant there is probable cause to believe that—
‘‘(A) the target of the physical search is a
foreign power or an agent of a foreign power:
Provided, That no United States person may be
considered an agent of a foreign power solely
upon the basis of activities protected by the
first amendment to the Constitution of the
United States;
‘‘(B) the premises or property to be
searched are owned, used, possessed by, or is in
transit to or from an agent of a foreign power
or a foreign power; and
‘‘(C) physical search of such premises or
property can reasonably be expected to yield
foreign intelligence information which cannot
reasonably be obtained by normal investigative
means; and
‘‘(4) the proposed minimization procedures
meet the definition of minimization contained in this
title; and
‘‘(5) the application which has been filed con-
tains all statements required by section 402.
‘‘(b) An order approving a physical search under this
section shall—
‘‘(1) specify—
‘‘(A) the Federal officer or officers author-
ized to conduct the physical search and the
identity, if known, or a description of the target
of the physical search;
‘‘(B) the premises or property to be
searched and the information, material, or
property to be seized, altered, or reproduced;
‘‘(C) the type of foreign intelligence infor-
mation sought to be acquired; and
‘‘(D) a statement of the manner in which
the physical search is to be conducted and,
whenever more than one physical search is au-
thorized under the order, the authorized scope
of each search and what minimization proce-
dures shall apply to the information acquired by
each search;
‘‘(2) direct—
‘‘(A) that the minimization procedures be
followed;
‘‘(B) that, upon the request of the appli-
cant, a specified landlord, custodian, or other
specified person furnish the applicant forthwith
all information, facilities, or assistance nec-
essary to accomplish the physical search in such
a manner as will protect its secrecy and
produce a minimum of interference with the ac-
tivities of the landlord, custodian, or other per-
son; and that such landlord, custodian or other
person maintain under security procedures ap-
proved by the Attorney General and the Direc-
tor of Central Intelligence any records concern-
ing the search or the aid furnished that such
person wishes to retain;
‘‘(C) that the physical search be under-
taken within 30 days of the date of the order,
or, if the physical search is of the property, in-
formation or material of a foreign power as de-
fined in section 101(a)(1), (2), or (3) of this
Act, that such search be undertaken within one
year of the order; and
‘‘(D) that the Federal officer conducting
the physical search promptly report to the court
the circumstances and results of the physical
search.
‘‘(c) At any time after a physical search has been car-
ried out, the judge to whom the return has been made
may assess compliance with the minimization procedures
by reviewing the circumstances under which information
concerning United States persons was acquired, retained,
or disseminated.
‘‘(d) Application made and orders granted under this
title shall be retained for a period of at least ten years
from the date of the application.
‘‘(e) Not more than 60 days after a physical search
of the residence of a United States person authorized by
this title, or such a search in the circumstances described
in section 406(b), has been conducted, the Attorney Gen-
eral shall provide the United States person with an inven-
tory which shall include—
‘‘(1) existence or not of a court order authoriz-
ing the physical search and the date of the order;
‘‘(2) the date of the physical search and an
identification of the premises or property searched;
and
‘‘(3) a list of any information, material, or
property seized, altered, or reproduced.
‘‘(f) On an ex parte showing of good cause by the
Attorney General to a judge of the Foreign Intelligence
Surveillance Court the provision of the inventory required
by subsection (e) may be postponed for a period not to
exceed 90 days. At the end of such period the provision
of the inventory may, upon a similar showing, be post-
poned indefinitely. The denial of a request for such post-
ponements may be reviewed as provided in section 401.
‘‘USE OF INFORMATION
‘‘SEC. 404. (a) Information acquired from a physical
search conducted pursuant to this title concerning any
United States person may be used and disclosed by Fed-
eral officers and employees without the consent of the
‘‘(2) the physical search was not made in con-
formity with an order of authorization or approval.
Such a motion shall be made before the trial, hearing, or
other proceeding unless there was no opportunity to make
such a motion or the person was not aware of the grounds
of the motion.
‘‘(f) Whenever a court of other authority is notified
pursuant to subsection (c) or (d), or whenever a motion
is made pursuant to subsection (e), or whenever any mo-
tion or request is made by an aggrieved person pursuant
to any other statute or rule of the United States or any
State before any court or other authority of the United
States or any State to discover or obtain applications or
orders or other materials relating to a physical search au-
thorized by this title or to discover, obtain, or suppress
evidence or information obtained or derived from a phys-
ical search authorized by this title, the United States dis-
trict court or, where the motion is made before another
authority, the United States district court in the same dis-
trict as the authority shall, notwithstanding any other law,
if the Attorney General files an affidavit under oath that
disclosure or an adversary hearing would harm the na-
tional security of the United States, review in camera and
ex parte the application, order, and such other materials
relating to the physical search as may be necessary to de-
termine whether the physical search of the aggrieved per-
son was lawfully authorized and conducted. In making this
determination, the court may disclose to the aggrieved per-
son, under appropriate security procedures and protective
orders, portions of the application, order, or other mate-
rials relating to the physical search only where such disclo-
sure is necessary to make an accurate determination of
the legality of the physical search.
‘‘(g) If the United States district court pursuant to
subsection (f) determines that the physical search was not
lawfully authorized or conducted, it shall, in accordance
with the requirements of law, suppress the evidence which
was unlawfully obtained or derived from the physical
search of the aggrieved person or otherwise grant the mo-
tion of the aggrieved person. If the court determines that
the physical search was lawfully authorized or conducted,
it shall deny the motion of the aggrieved person except
to the extent that due process requires discovery or disclo-
sure.
‘‘(h) Orders granting motions or requests under sub-
section (g), decisions under this section that a physical
search was not lawfully authorized or conducted, and or-
ders of the United States district court requiring review
or granting disclosure of applications, orders or other ma-
terials relating to the physical search shall be final orders
and binding upon all courts of the United States and the
several States except a United States court of appeals and
the Supreme Court.
‘‘(i) The provisions of this section regarding the use
or disclosure of information obtained or derived from a
physical search shall apply to information obtained or de-
rived from a search conducted without a court order to
obtain foreign intelligence information which is not a phys-
ical search as defined in this title solely because the exist-
ence of exigent circumstances would not require a warrant
for law enforcement purposes.
‘‘OVERSIGHT
‘‘SEC. 405. (a) On a semiannual basis the Attorney
General shall fully inform the House Permanent Select
Committee on Intelligence and the Senate Select Commit-
tee on Intelligence concerning all physical searches con-
ducted pursuant to this title, and all other searches, except
those reported under section 108 of this Act, conducted
in the United States for foreign intelligence purposes. On
an annual basis the Attorney General shall also provide
to those committees a report setting forth with respect to
the preceding calendar year—
‘‘(1) the total number of applications made for
orders approving physical searches under this title;
and
‘‘(2) the total number of such orders either
granted, modified, or denied.
‘‘(b) Whenever a search is conducted without a court
order to obtain foreign intelligence information which is
not a physical search as defined in this title solely because
the existence of exigent circumstances would not require
a warrant for law enforcement purposes, a full report of
such search, including a description of the exigent cir-
cumstances, shall be maintained by the Attorney General.
Each such report shall be transmitted to the Foreign In-
telligence Surveillance Court promptly after the search is
conducted.
‘‘AUTHORITY FOR INTELLIGENCE SEARCHES
‘‘SEC. 406. (a) The procedures contained in this title
shall be the exclusive means by which a physical search,
as defined in this title, may be conducted in the United
States for foreign intelligence purposes, and an order is-
sued under this title authorizing a physical search shall
constitute a search warrant authorized by law for purposes
of any other law.
‘‘(b) Searches conducted in the United States to col-
lect foreign intelligence information, other than physical
searches as defined in this title and electronic surveillance
as defined in this Act, and physical searches conducted
in the United States without a court order to collect for-
eign intelligence information may be conducted only pur-
suant to regulations issued by the Attorney General. Such
regulations, and any changes thereto, shall be provided to
the Select Committee on Intelligence of the Senate and
the Permanent Select Committee on Intelligence of the
House of Representatives at least 14 days prior to the tak-
ing effect. Any regulations issued by the Attorney General
regarding such searches which were in effect as of June
1, 1990, shall be deemed to be regulations required by
this subsection.
‘‘PENALTIES
‘‘SEC. 407. (a) OFFENSE.—A person is guilty of an
offense if he intentionally—
‘‘(1) under color of law for the purpose of ob-
taining foreign intelligence information, engages in
physical search within the United States except as
authorized by statute; or
‘‘(2) discloses or uses information obtained
under color of law by physical search within the
United States, knowing or having reason to know
that the information was obtained through physical
search not authorized by statute, for the purpose of
obtaining intelligence information.
‘‘(b) DEFENSE.—It is a defense to a prosecution
under subsection (a) that the defendant was a law enforce-
ment or investigative officer engaged in the course of his
official duties and the physical search was authorized by
and conducted pursuant to a search warrant or court
order of a court of competent jurisdiction.
‘‘(c) PENALTY.—An offense described in this section
is punishable by a fine in accordance with title 18, United
States Code, or imprisonment for not more than five
years, or both.
‘‘(d) JURISDICTION.—There is Federal jurisdiction
over an offense under this section if the person committing
the offense was an officer or employee of the United States
at the time the offense was committed.
‘‘CIVIL LIABILITY; CIVIL ACTION
‘‘SEC. 408. An aggrieved person, other than a foreign
power or an agent of a foreign power, as defined in section
101 (a) or (b)(1)(A), respectively, of this Act, whose prem-
ises, property, information, or material has been subjected
to a physical search within the United States or about
whom information obtained by such a physical search has
been disclosed or used in violation of section 407 shall
have a cause of action against any person who committed
such violation and shall be entitled to recover—
‘‘(a) actual damages;
‘‘(b) punitive damages; and
‘‘(c) reasonable attorney’s fees and other inves-
tigative and litigation costs reasonably incurred.
‘‘DEFINITIONS
‘‘9. AS USED IN THIS TITLE:
‘‘(a) The terms ‘foreign power,’ ‘agent of a for-
eign power,’ ‘international terrorism,’ ‘sabotage,’
‘foreign intelligence information,’ ‘Attorney General,’
‘United States person,’ ‘United States’,’ ‘person,’
and ‘State’ shall have the same meaning as in Sec-
tion 101 of this Act.
‘‘(b) ‘Physical search’ means any physical intru-
sion into premises or property (including examina-
tion of the interior of property by technical means)
or any seizure, reproduction or alteration of infor-
mation, material or property, under circumstances in
which a person has a reasonable expectation of pri-
vacy and a warrant would be required for law en-
forcement purposes, but does not include ‘electronic
surveillance’ as defined in subsection 101(f) of this
Act.
‘‘(c) ‘Minimization procedures’ with respect to
physical search, means—
‘‘(1) specific procedures, which shall be
adopted by the Attorney General, that are rea-
sonably designed in light of the purposes and
technique of the particular physical search, to
minimize the acquisition and retention, and pro-
hibit the dissemination, of non-publicly available
information concerning unconsenting United
‘‘(e) ‘Foreign Intelligence Surveillance Court’
means the court established by section 103(a) of this
Act.
‘‘(f) ‘Court of Review’ means the court estab-
lished by section 103(b) of this Act.
‘‘EFFECTIVE DATE
‘‘SEC. 410. The provisions of this title shall become
effective 90 days after the date of enactment of this title,
except that any physical search approved by the Attorney
General to gather foreign intelligence information shall
not be deemed unlawful for failure to follow the procedures
of this title, if that search is conducted within 180 days
following the date of enactment of this title pursuant to
regulations issued by the Attorney General, which are in
the possession of the Select Committee on Intelligence of
the Senate and the Permanent Select Committee on Intel-
ligence of the House of Representatives prior to the date
of enactment of this title.’’.
(b) The table of contents of the Foreign Intelligence
Surveillance Act of 1978 is amended by adding at the end
the following:
‘‘TITLE IV—PHYSICAL SEARCHES WITHIN THE UNITED STATES
FOR FOREIGN INTELLIGENCE PURPOSES
‘‘Sec. 401. Authorization of physical searches for foreign intelligence pur-
poses.
‘‘Sec. 402. Application for an order .
‘‘Sec. 403. Issuance of an order.
‘‘Sec. 404. Use of information.
‘‘Sec. 405. Oversight.
‘‘Sec. 406. Authority for intelligence searches.
‘‘Sec. 407. Penalties.
‘‘Sec. 408. Civil liability.
‘‘Sec. 409. Definitions.
‘‘Sec. 410. Effective date.’’.
Æ
HR 4137 IH——2
HR 4137 IH——3
HR 4137 IH——4