Foreign Intelligence Surveillance Act: Selected Legislation from the 108th Congress
Released: 2005-01-11T00:00:00

FISA Provisions which are Part of Intelligence Reform or Reorganization Proposals

While not all of the intelligence reform or reorganization proposals introduced in the 108thCongress addressed FISA, a number had FISA provisions, including:

P.L. 108-458 ( S. 2845 ) . Intelligence Reform and Terrorism Prevention Act of 2004,enacted into law December 17, 2004. Originally introduced on September 23, 2004, as the NationalIntelligence Reform Act of 2004, by Senator Susan Collins, for herself and Senator JosephLieberman, reporting an original bill from the Committee on Governmental Affairs. It passed theSenate with amendments on October 6, 2004 by Yea-Nay Vote, 96-2 (Record Vote Number 199). After H.R. 10 was passed by the House of Representatives, Section 2 of H.Res. 827 provided that, when S. 2845 was received from the Senate bythe House, the latter bill was to be considered to have been taken from the Speaker's table, all butits enacting clause was to be deemed stricken and the text of H.R. 10 as passed by theHouse inserted in lieu thereof, and as so amended, S. 2845 was to be considered passedby the House. H. Res. 827 provided further that the House was to be deemed to have insisted on itsamendment and to have requested a conference with the Senate thereon. S. 2845 passedthe House as amended on October 16, 2004. The conference report, H.Rept. 108-796 , was filed onDecember 7, 2004. It was agreed to in the House by recorded vote, 336-75 (Roll no. 544) the sameday, and passed the Senate by Yea-Nay Vote, 89-2 (Record Vote Number 216) the following day. The President signed the measure into law on December 17, 2004, P.L. 108-458 , entitled theIntelligence Reform and Terrorism Prevention Act of 2004.

As enacted, Section 1011 of the measure amended Title I of the National Security Act of1947, 50 U.S.C. Â§ 402 et seq. , to strike the previous Sections 102 through 104 of the act 50 U.S.C.Â§Â§ 403, 403-1, 403-3, and 403-4, and insert new Sections 102 through 104A. The new Section 102created the position of Director of National Intelligence (DNI). Section 102A outlined authoritiesand responsibilities of the position. Under the new Section 102A(f)(6) of the National Security Act,the DNI was given responsibility "to establish requirements and priorities for foreign intelligenceinformation to be collected under [FISA], and provide assistance to the Attorney General to ensurethat information derived from electronic surveillance or physical searches under that act isdisseminated so that it may be used efficiently and effectively for foreign intelligence purposes,except that the Director shall have no authority to direct, manage, or undertake electronicsurveillance or physical search operations pursuant to that act unless otherwise authorized by statuteor Executive order." New Section 102A(f)(8) of the National Security Act, as enacted by P.L.108-458 , Section 1011, provided that, "Nothing in this act shall be construed as affecting the roleof the Department of Justice or the Attorney General with respect to applications under the ForeignIntelligence Surveillance Act."

Section 1071(e) of P.L. 108-458 , amended FISA to insert "Director of National Intelligence"in lieu of "Director of Central Intelligence" in each place in which it appeared.

Section 6001 of P.L. 108-458 amended Sec. 101(b)(1) of FISA, 50 U.S.C. Â§ 1801(b)(1), toadd to the list of categories of persons, other than U.S. persons, who are considered "agents of aforeign power" for purposes of FISA. Under Sec. 6001, any person, other than a U.S. person, who"engages in international terrorism or activities in preparation therefore" (2) is considered an agent of aforeign power. This language does not require the government to establish that the person wasconnected with an international terrorist organization, foreign government or group. The newlanguage is subject to the sunset provision in Sec. 224 of the USA PATRIOT Act, P.L.107-56 ,including the exception provided in subsection (b) of Sec. 224. Therefore, Sec. 6001 as amendedwill sunset on December 31, 2005, except with respect to any foreign intelligence investigationbegun before that date or any criminal offense or potential offense that began or occurred before thatdate. (3)

Section 6002 created additional semiannual reporting requirements under FISA. Under thenew language, the Attorney General, on a semiannual basis, must submit to the House PermanentSelect Committee on Intelligence, the Senate Select Committee on Intelligence, the House JudiciaryCommittee and the Senate Judiciary Committee, in a manner consistent with protection of nationalsecurity, reports setting forth with respect to the preceding six month period: "(1) the aggregatenumber of persons targeted for orders issued under this act, including a breakdown of those targetedfor--(A) electronic surveillance under section 105 [50 U.S.C. Â§ 1805]; (B) physical searches undersection 304 [50 U.S.C. Â§ 1824]; (C) pen registers under section 402 [50 U.S.C. Â§ 1842]; and (D)access to records under section 501 [50 U.S.C. Â§ 1861]; (2) the number of individuals covered byan order issued pursuant to section 101(b)(1)(C) [50 U.S.C. Â§ 1801(b)(1)(C)]; (3) the number oftimes that the Attorney General has authorized that information obtained under this act may be usedin a criminal proceeding or any information derived therefrom may be used in a criminal proceeding;(4) a summary of significant legal interpretations of this act involving matters before the ForeignIntelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review, includinginterpretations presented in applications or pleadings filed with the Foreign Intelligence SurveillanceCourt or the Foreign Intelligence Court of Review by the Department of Justice; and (5) copies ofall decisions (not including orders) or opinions of the Foreign Intelligence Surveillance Court orForeign Intelligence Surveillance Court of Review that include significant construction orinterpretation of the provisions of this act."

H.R. 10 . 9/11 Recommendations Implementation Act. Introduced by RepresentativeJ. Dennis Hastert on September 24, 2004, and referred to House Permanent Select Committee onIntelligence, and in addition to the House Committees on Armed Services, Education and theWorkforce, Energy and Commerce, Financial Services, Government Reform, International Relations,the Judiciary, Rules, Science, Transportation and Infrastructure, Ways and Means, and SelectCommittee on Homeland Security, for a period to be subsequently determined by the Speaker, ineach case for consideration of such provisions as fall within the jurisdiction of the committeeconcerned. On October 4, 2004, reported out of: House Permanent Select Committee onIntelligence, amended, H.Rept. 108-724 , Part I; House Committee on Armed Services, amended, H.Rept.108-724 , Part II; and House Committee on Financial Services, amended, H.Rept. 108-724 ,Part III. On October 5, 2004, reported out of House Committee on Government Reform, amended, H.Rept. 108-724 , Part IV; and House Judiciary Committee, amended, H.Rept. 108-724 , Part V. Alsoon October 5, 2004, the House Committees on Education and the Workforce, Energy and Commerce,International Relations, Rules, Science, Transportation, and Ways and Means, and the House SelectCommittee on Homeland Security were discharged. The measure passed the House on October 8,2004, by recorded vote, 282-134 (Roll no. 523). A supplemental report was filed by the HouseJudiciary Committee on November 16, 2004, H.Rept. 108-724 , Part VI. As per H.Res. 827 , Section 2, the House was considered to have stricken all but the enacting clause of S. 2845 as received from the Senate and inserted the text of H.R. 10 aspassed by the House in lieu thereof, to have insisted on its amendment, and to have requested aconference. For further action, see discussion of P.L.108-458 ( S. 2845 ).

Sec. 1011 of the H.R. 10 , among other things, created a new Sec. 102A of theNational Security Act of 1947, dealing with the responsibilities and authorities of the newly createdNational Intelligence Director. Sec. 102A(f) stated, in pertinent part, that "Nothing in this act shallbe construed as affecting the role of the Department of Justice or the Attorney General with respectto applications under the Foreign Intelligence Surveillance Act." Under Sec. 1071(e) of the measure,"Director of Central Intelligence" was replaced with "National Intelligence Director" in each placein which it appears in FISA. Sec. 2001 of the bill as introduced would have amended Sec. 101(b)(1)of FISA, 50 U.S.C. Â§ 1801(b)(1), to add to the list of categories of persons, other than U.S. persons,who are considered "agents of a foreign power" for purposes of FISA. Under Sec. 2001 asintroduced, any person, other than a U.S. person, who "engages in international terrorism or activitiesin preparation therefor" would be considered an agent of a foreign power. This language would nothave required the government to establish that the person was connected with an internationalterrorist organization, foreign government or group. During mark-up of H.R. 10 by theHouse Judiciary Committee, an amendment offered by Representative Howard Berman was agreedto by voice vote which would replace Sec. 2001 as introduced with a new Sec. 2001. The newlanguage would have created a new Sec. 101A of FISA, 50 U.S.C. Â§ 1801A, which would haveprovided, "Upon application by the Federal official applying for an order under this act, the courtmay presume that a non-United States person who is knowingly engaged in sabotage or internationalterrorism, or activities that are in preparation therefor, is an agent of a foreign power under section101(b)(2)(C)." The amendment would also have made the new language subject to the sunsetprovision in Sec. 224 of the USA PATRIOT Act, P.L.107-56 , including the exception provided insubsection (b) of Sec. 224. Therefore, Sec. 2001 as amended would have been subject to sunset onDecember 31, 2005, except with respect to any foreign intelligence investigation begun before thatdate or any criminal offense or potential offense that began or occurred before that date.

H.R. 4104 . Intelligence Transformation Act of 2004. Introduced April 1, 2004, byRepresentative Jane Harman, and referred to House Permanent Select Committee on Intelligence. Sec. 101 of the bill would, in pertinent part, have amended the National Security Act of 1947 tostrike the existing Section 103 of the act and replace it with new language. Under new Section103(b)(6), a newly created Director of National Intelligence would have had responsibility to"establish requirements and priorities for foreign intelligence information to be collected under[FISA] and provide assistance to the Attorney General to ensure that information derived fromelectronic surveillance or physical searches under that act is disseminated so it may be usedefficiently and effectively for foreign intelligence purposes, except that the Director shall have noauthority to direct, manage, or undertake electronic surveillance or physical search operationspursuant to that act unless otherwise authorized by statute or Executive order." Under Sec. 502 ofH.R. 4104, "Director of Central Intelligence" was to be replaced with "Director of NationalIntelligence" in each place in FISA in which it appeared.

H.R. 5040 . 9/11 Commission Report Implementation Act of 2004. IntroducedSeptember 9, 2004, by Representative Christopher Shays, and referred to House Permanent SelectCommittee on Intelligence, and in addition to the House Committees on Armed Services,International Relations, Government Reform, Judiciary, Rules, Transportation and Infrastructure,Energy and Commerce, Ways and Means, and House Select Committee on Homeland Security, fora period to be subsequently determined by the Speaker, in each case for consideration of suchprovisions as fall within the jurisdiction of the committee concerned. Referred to HouseSubcommittee on Aviation; House Subcommittee on Coast Guard and Maritime Transportation;House Subcommittee on Economic Development, Public Buildings and Emergency Management;House Subcommittee on Railroads; House Subcommittee on Highways, Transit and Pipelines; andHouse Subcommittee on Water Resources and Environment of House Transportation andInfrastructure Committee on September 10, 2004. Referred to the House Energy and CommerceCommittee's Subcommittee on Telecommunications and the Internet for a period subsequentlydetermined by the Chairman on October 8, 2004. Under Sec. 132(a)(6), the National IntelligenceDirector established by the bill would have had responsibility to "establish requirements andpriorities for foreign intelligence information to be collected under [FISA], and provide assistanceto the Attorney General to ensure that information derived from electronic surveillance or physicalsearches under that act is disseminated so that it may be used efficiently and effectively for foreignintelligence purposes, except that the Director shall have no authority to direct, manage, or undertakeelectronic surveillance or physical search operations pursuant to that act unless otherwise authorizedby statute or Executive order." Under Sec. 172(e) of the bill, "National Intelligence Director" was to replace "Director of Central Intelligence" in every place where it appeared in FISA.

H.R. 5150 . National Intelligence Reform Act of 2004. Introduced September 24,2004, by Representative Christopher Shays, for himself and Representative Carolyn Maloney, andreferred to the House Permanent Select Committee on Intelligence. In Sec. 112(a)(7) of the bill, anewly established National Intelligence Director would have had responsibility "to establishrequirements and priorities for foreign intelligence information to be collected under [FISA], andprovide assistance to the Attorney General to ensure that information derived from electronicsurveillance or physical searches under that act is disseminated so that it may be used efficiently andeffectively for foreign intelligence purposes, except that the Director shall have no authority to direct,manage, or undertake electronic surveillance or physical search operations pursuant to that act unlessotherwise authorized by statute or Executive order." Under Sec. 302(e) of the bill, "NationalIntelligence Director" would have replaced "Director of Central Intelligence" in each place in whichit appeared in FISA.

S. 6 . Comprehensive Homeland Security Act of 2003. Introduced January 7, 2003,by Senator Thomas Daschle, and referred to Senate Committee on the Judiciary. Sec. 10002 of thebill created a new Sec.103(b)(6) of the National Security Act of 1947, pursuant to which a newlyestablished Director of National Intelligence would have had responsibility "to establishrequirements and priorities for foreign intelligence information to be collected under [FISA], andprovide assistance to the Attorney General to ensure that information derived from electronicsurveillance or physical searches under that act is disseminated so that it may be used efficiently andeffectively for foreign intelligence purposes, except that the Director shall have no authority to direct,manage, or undertake electronic surveillance or physical search operations pursuant to that act unlessotherwise authorized by statute or Executive order." Under to Sec. 10005(f) of the bill, "Directorof Central Intelligence" would have been replaced with "Director of National Intelligence" in everyplace it appeared in FISA.

S. 190 . Intelligence Community Leadership Act of 2003. Introduced January 16,2003, by Senator Dianne Feinstein, and referred to the Senate Select Committee on Intelligence. Section 2 of the bill would have replaced the existing Sec. 103 of the National Security Act of 1947with a new Sec. 103, subsection 103(b)(6) of which would have given the new Director of NationalIntelligence responsibility "to establish requirements and priorities for foreign intelligenceinformation to be collected under [FISA], and provide assistance to the Attorney General to ensurethat information derived from electronic surveillance or physical searches under that act isdisseminated so that it may be used efficiently and effectively for foreign intelligence purposes,except that the Director shall have no authority to direct, manage, or undertake electronicsurveillance or physical search operations pursuant to that act unless otherwise authorized by statuteor Executive order." Under Sec. 4(f) of the bill, "Director of Central Intelligence" would have beenreplaced with "Director of National Intelligence" in each place in FISA in which it appeared.

S. 1520 . 9-11 Memorial Intelligence Reform Act. Introduced July 31, 2003, bySenator Bob Graham, and referred to the Senate Select Committee on Intelligence. Sec. 2 of the billwould create a new Sec. 103 of the National Security Act of 1947. Under the new Sec. 103(b)(6),the newly established Director of National Intelligence would have had responsibility to "establishrequirements and priorities for foreign intelligence information to be collected under [FISA], andprovide assistance to the Attorney General to ensure that information derived from electronicsurveillance or physical searches under that act is disseminated so that it may be used efficiently andeffectively for foreign intelligence purposes, except that the Director shall have no authority to direct,manage, or undertake electronic surveillance or physical search operations pursuant to that act unlessotherwise authorized by statute or Executive order." Section 8(a)(1) of the bill would have directedthe Attorney General, in consultation with the Director of the FBI, to "provide detailed training toappropriate personnel of the FBI, and to appropriate personnel of other elements of the intelligencecommunity, on the availability and utilization of the authorities provided by [FISA] to addressterrorist threats to the United States." Section 8(b) required the Attorney General and the Directorof the FBI to "jointly take appropriate actions to ensure that the information acquired throughelectronic surveillance, searches, and other activities under [FISA] is disseminated on a timely basisto appropriate personnel within the [FBI], and appropriate personnel in other elements of theintelligence community, in order to facilitate the use of such information for analysis and operationsto address terrorists threats to the United States." Under Section 8(c), the Attorney General and theDirector of the FBI were required to "jointly develop a plan to utilize the authorities under [FISA]to provide for the full assessment of the threats posed to the United States by international terroristgroups operating within the United States, including the determination of the extent to which suchgroups are funded or otherwise supported by foreign governments." In the context of enhancedcounterterrorism training for intelligence community personnel, Subsections 10(1)(A) and (C) of thebill directed the Director of National Intelligence to expand such training to improve and enhance(A) "intelligence sharing between and among intelligence personnel and law enforcement personnel;. . . [and] (C) the utilization of the authorities under [FISA]."

S. 2811 . Intelligence Reformation Act of 2004 or 9/11 Act. Introduced September15, 2004, by Senator Arlen Specter, and referred to Senate Committee on Governmental Affairs. Under Sec. 132(a)(5), the newly established Director of Intelligence would have had responsibility"to establish requirements and priorities for foreign intelligence information to be collected under[FISA], and provide assistance to the Attorney General to ensure that information derived fromelectronic surveillance or physical searches under that act is disseminated so that it may be usedefficiently and effectively for foreign intelligence purposes, except that the Director shall have noauthority to direct, manage, or undertake electronic surveillance or physical search operationspursuant to that act unless otherwise authorized by statute or Executive order." Under Sec. 402(e),"Director of Intelligence" was to replace "Director of Central Intelligence" in each place it appearedin FISA.

S. 2840 . National Intelligence Reform Act of 2004. Introduced September 23, 2004,by Senator Susan Collins, reporting an original bill from the Senate Committee on GovernmentalAffairs. On September 27, 2004, the Senate Committee on Governmental Affairs filed a writtenreport, S.Rept. 108-359 , with additional views. In Sec. 112, the bill outlined the responsibilities ofthe new National Intelligence Director. In Sec. 112(a)(7), the Director was given responsibility "toestablish requirements and priorities for foreign intelligence information to be collected under[FISA], and provide assistance to the Attorney General to ensure that information derived fromelectronic surveillance or physical searches under that act is disseminated so that it may be usedefficiently and effectively for foreign intelligence purposes, except that the Director shall have noauthority to direct, manage, or undertake electronic surveillance or physical search operationspursuant to that act unless otherwise authorized by statute or Executive order." Under Sec. 302(e)of the bill, "National Intelligence Director" replaced "Director of Central Intelligence" in each placein which it appeared in FISA.

Senator Pat Roberts' Draft Bill , dated August 23, 2004. 9-11 National Security Protection Act. Sec. 102 of the bill would create a new Sec. 102A of the National Security Act of 1947. Under Sec.102A(b)(8), the newly established National Intelligence Director would have had responsibility "toestablish requirements and priorities for foreign intelligence information to be collected under[FISA], and provide assistance to the Attorney General to ensure that information derived fromelectronic surveillance or physical searches under that act is disseminated so that it may be usedefficiently and effectively for foreign intelligence purposes, except that the Director shall have noauthority to direct, manage, or undertake electronic surveillance or physical search operationspursuant to that act unless otherwise authorized by statute or Executive order." Under Sec. 221(e)of the bill, "National Intelligence Director" would have replaced "Director of Central Intelligence"in each place where it appeared in FISA.

Other FISA-Related Bills in the 108th Congress

The FISA-related measures in the 108th Congress which did not involve intelligence reformor reorganization appear to have been more varied in their focus and approach. These included thefollowing bills:

H.R. 1157 . Freedom to Read Protection Act. A bill to amend the Foreign IntelligenceSurveillance Act to exempt bookstores and libraries from orders requiring the production of anytangible things for certain foreign intelligence investigations, and for other purposes. Introduced onMarch 6, 2003, by Representative Bernard Sanders. Referred to House Judiciary Committee and theHouse Permanent Select Committee on Intelligence for a period to be subsequently determined bythe Speaker, in each case for consideration of such provisions as fall within the jurisdiction of thecommittee concerned, on March 6, 2003. Referred to the Subcommittee on Crime, Terrorism, andHomeland Security of the House Judiciary Committee on May 5, 2003. Among other things, Sec.2 of the bill amended Section 501 of FISA, 50 U.S.C. Â§ 1861, to preclude an application for an orderseeking or having the effect of searching for or seizing records of a bookseller or library documentarymaterials concerning personally identifiable information regarding a patron of the library orbookstore. It did not preclude a physical search for such documentary materials under anotherprovision of law. Sec. 3 of the bill amended 50 U.S.C. Â§ 1862, with respect to reportingrequirements for the Attorney General to make to the House Judiciary Committee, Senate JudiciaryCommittee, House Permanent Select Committee on Intelligence and Senate Committee onIntelligence. It also required the Attorney General, consistent with protection of U.S. nationalsecurity, to make public the information reported to these committees.

H.R. 2242 . Tribal Government Amendments to the Homeland Security Act. A billto amend the Homeland Security Act of 2002 to include Indian tribes among the entities consultedwith respect to activities carried out by the Secretary of Homeland Security and for other purposes. Introduced on May 22, 2003, by Representative Patrick J. Kennedy. On May 22, 2003, referred tothe House Committee on Resources and, in addition, to the House Committee on the Judiciary, theHouse Committee on the Budget, the House Permanent Select Committee on Intelligence, and theHouse Select Committee on Homeland Security, for a period to be subsequently determined by theSpeaker, in each case for consideration of such provisions as fall within the jurisdiction of thecommittee concerned. Referred to the Subcommittee on Crime, Terrorism, and Homeland Securityof the House Judiciary Committee on June 25, 2003. Sec. 12(g)(1) would have amended Section106(k)(1) of FISA, 50 U.S.C. Â§ 1806(k)(1), to permit federal officers who conduct electronicsurveillance to acquire foreign intelligence information under FISA to consult, among others, withlaw enforcement personnel of an Indian tribe. Sec. 12(g)(2) would also have amended Section305(k)(1) of FISA, 50 U.S.C. Â§ 1825(k)(1), to permit federal officers who conduct a physical searchunder FISA to consult, among others, with law enforcement personnel of an Indian Tribe.

H.R. 2429 . Surveillance Oversight and Disclosure Act of 2003. A bill to amend theForeign Intelligence Surveillance Act of 1978 to improve the administration and oversight of foreignintelligence surveillance, and for other purposes. Introduced on June 11, 2003, by RepresentativeJoseph M. Hoeffel. On June 11, 2003, referred to the House Judiciary Committee, the HousePermanent Select Committee on Intelligence, and the House Financial Services Committee, for aperiod to be subsequently determined by the Speaker, in each case for consideration of suchprovisions as fall within the jurisdiction of the committee concerned. Referred to the Subcommitteeon Financial Institutions and Consumer Credit of House Committee on Financial Services for aperiod to be subsequently determined by the Chairman, on June 23, 2003. Referred to Subcommitteeon Commercial and Administrative Law of House Judiciary Committee on June 25, 2003. Amongother things, this measure would have authorized the Foreign Intelligence Surveillance Court (FISC)and the Foreign Intelligence Court of Review (Court of Review) to establish rules and proceduresand to take actions necessary to administer FISA. It would have required reporting of such rules andprocedures and any modifications thereof to all of the judges of the FISC and the Court of Review,the Chief Justice of the United States, the House Judiciary Committee, the Senate JudiciaryCommittee, the House Permanent Select Committee on Intelligence and the Senate Committee onIntelligence. In addition, it would have established certain public reporting requirements withrespect to electronic surveillance, physical searches, pen registers, and business records productionunder FISA.

H.R. 2800 . Foreign Operations, Export Financing, and Related ProgramsAppropriations Act, 2004. A bill making appropriations for foreign operations, export financing,and related programs for the fiscal year ending September 30, 2004, and for other purposes. Introduced/originated in the House on July 21, 2003. On that day, the House Committee onAppropriations reported an original measure, H.Rept. 108-222 , by Representative Jim Kolbe. Passedthe House, amended, on July 24, 2003, by Yeas and Nays, 370-50 (Roll no. 429). Received in theSenate July 24, 2003, read twice, and placed on Senate Legislative Calendar under General Orders,Calendar No. 227. Sec. 582 barred the use of funds by the State Department to support anapplication under FISA for an order requiring the production of library circulation records, librarypatron lists, library Internet records, bookseller sales records, or bookseller customer lists. Note that H.R. 2673 , the Consolidated Appropriations bill for 2004, which became P.L. 108-199 ,included appropriations for Foreign Operations, but does not appear to have included FISA language.

H.R. 3179 . Anti-Terrorism Intelligence Tools Improvement Act of 2003. IntroducedSeptember 25, 2003, by Representative James Sensenbrenner, Jr., and referred to House Committeeon Judiciary an House Permanent Select Committee on Intelligence. Referred to Subcommittee onCrime, Terrorism, and Homeland Security of House Judiciary Committee on October 22, 2003. Subcommittee hearings held May 18, 2004. Sec. 4 of the bill would have amended Sec. 101(b)(1)of FISA, 50 U.S.C. Â§ 1801(b)(1) to include in the definition of an "agent of a foreign power" anyperson other than a U.S. person who "engages in international terrorism or activities in preparationtherefor." Sec. 6 of the bill would have created an exception to the FISA provisions regardingnotification by the United States of intended use or disclosure of information acquired through aFISA electronic surveillance, FISA physical search, or FISA pen register or trap and trace device;motion to suppress; and in camera and ex parte review by the district court, for civil proceedings orother civil matters under the immigration laws.

H.R. 3352 . Security and Freedom Ensured Act of 2003 or SAFE Act. Introduced onOctober 21, 2003, by Representative C.L. (Butch) Otter, and referred to the House Committee onthe Judiciary and House Permanent Select Committee on Intelligence. Referred to the Subcommitteeon Crime, Terrorism, and Homeland Security of the House Judiciary Committee on December 10,2003. Sec. 2 of the bill would have amended the roving wiretap provisions of FISA to require thatan order approving such electronic surveillance must specify either the identity of the target or theplaces and facilities to which the electronic surveillance is to be directed. In cases where the facilityor place is not known at the time of the issuance of the order, Sec. 2 of the bill would have requiredthat the electronic surveillance only be conducted when the person conducting the surveillance hasascertained that the target is present at a particular facility or place. Sec. 4 of the bill would haverequired that applications for FISA orders for production of books, records, papers, documents, orother tangible things under 50 U.S.C. Â§ 1861, must specify that there are specific and articulablefacts giving reason to believe that the person to whom the records pertain is a foreign power or agentof a foreign power, and that the court, in issuing its order must find that there are specific andarticulable facts giving reason to believe that the person to whom the records pertain is a foreignpower or an agent of a foreign power and that the application meets the other requirements of 50U.S.C. Â§ 1861. Sec. 4 of the bill also would have amended 50 U.S.C. Â§ 1862 to require the AttorneyGeneral, on a semi-annual basis, to fully inform the House Permanent Select Committee onIntelligence, the House Judiciary Committee, the Senate Select Committee on Intelligence and theSenate Judiciary Committee concerning all requests for production of tangible things under 50U.S.C. 1861. The Attorney General's report to the House and Senate Judiciary Committees wouldalso have been required to include the total number of applications made under 50 U.S.C. Â§ 1861,and the total number of such orders granted, modified or denied.

H.R. 3552 . A bill to amend the Foreign Intelligence Surveillance Act of 1978 to coverindividuals, other than United States persons, who engage in international terrorism withoutaffiliation with an international terrorist group. Introduced November 20, 2003, by RepresentativePeter King, and referred to the House Committee on the Judiciary and the House Permanent SelectCommittee on Intelligence. Referred to the Subcommittee on Crime, Terrorism, and HomelandSecurity of the House Judiciary Committee on December 10, 2003. Sec. 1 of the bill would haveamended the definition of "agent of a foreign power" under FISA to cover any person other than aU.S. person who engages in international terrorism or activities in preparation therefor. It wouldhave made this definitional change subject to sunset December 31, 2005, except for any particularforeign intelligence investigations that began before December 31, 2005, or any particular criminaloffenses or potential offenses which began or occurred before December 31, 2005. As to thoseparticular investigations or offenses, applicable provisions would continue in effect. Sec. 2 addedadditional reporting requirements: the Attorney General would have been required to report annuallyin April to the House Judiciary Committee, House Permanent Select Committee on Intelligence,Senate Judiciary Committee and Senate Select Committee on Intelligence on (1) the aggregatenumber of non-U.S. persons targeted for FISA orders during the previous year, broken down byelectronic surveillance, physical searches, pen registers, or access to records under 50 U.S.C. Â§ 1861;(2) the number of individual covered by an order issued under FISA who were determined pursuantto activities authorized by FISA to have acted wholly alone in activities covered by the order; (3) thenumber of times the Attorney General authorized that information obtained under FISA or derivativeinformation may be used in a criminal proceeding; and, (4) in a manner consistent with protectionof U.S. national security, redacting the facts of any particular matter, the portions of the documentsand applications filed with the Foreign Intelligence Surveillance Court (FISC) or the ForeignIntelligence Court of Review (Court of Review) that include significant construction or interpretationof the provisions of FISA and the portions of opinions or court orders from the FISC or Court ofReview which include significant construction or interpretation of FISA provisions.

H.R. 4591 . Civil Liberties Restoration Act of 2004. Introduced June 16, 2004, byRepresentative Howard Berman, and referred to the House Committee on the Judiciary and theHouse Permanent Select Committee on Intelligence. Referred June 28, 2004, to the Subcommitteeon Immigration, Border Security, and Claims and the Subcommittee on Crime, Terrorism, andHomeland Security of the House Judiciary Committee. In the context of electronic surveillance orphysical searches under FISA, Sec. 401 of the bill would have amended FISA to permit, rather thanrequire, relevant U.S. district courts, upon filing by the Attorney General of an affidavit under oaththat disclosure or an adversary hearing would harm U.S. national security, to review in camera andex parte the application, order, and other pertinent materials necessary to determine whether thesurveillance or physical search was lawfully authorized and conducted. In making this determinationwith respect to an electronic surveillance, the court would have been required to disclose, ifotherwise discoverable, to the aggrieved person, his or her counsel, or both, under ClassifiedInformation Procedures Act (CIPA) procedures and standards, portions of the application, order, orother materials relating to the surveillance unless the court finds the disclosure would not assist indetermining any legal or factual issue pertinent to the case. It would have applied a similar standardin the context of physical searches, but would have given the court the option of requiring theAttorney General to provide the aggrieved person, his or her counsel, or both, a summary of suchmaterials relating to the physical search. In the context of pen registers or trap and trace devices, thebill would have required disclosure to the aggrieved person, his or her attorney, or both, under CIPAprocedures and standards, if otherwise discoverable, of portions of the application, order, or othermaterials relating to the use of the pen register or trap and trace device, or evidence or informationobtained or derived from the pen register or trap and trace device, unless such disclosure would notassist in determining any legal or factual issue pertinent to the case. In the context of 50 U.S.C. Â§1861, any disclosure of applications, information, or items submitted or acquired pursuant to a FISAorder for production of tangible things, if otherwise discoverable, would have had to be conductedunder CIPA procedures and standards. Sec. 403 of the bill would have required that applications forFISA orders for production of books, records, papers, documents, or other tangible things under 50U.S.C. Â§ 1861, specify that there are specific and articulable facts giving reason to believe that theperson to whom the records pertain is a foreign power or agent of a foreign power, and that the court,in issuing its order find that there are specific and articulable facts giving reason to believe that theperson to whom the records pertain is a foreign power or an agent of a foreign power ant that theapplication meets the other requirements of 50 U.S.C. Â§ 1861. Sec. 403 of the bill also would haveamended 50 U.S.C. Â§ 1862 to require the Attorney General, on a semi-annual basis, to fully informthe House Permanent Select Committee on Intelligence, the House Judiciary Committee, the SenateSelect Committee on Intelligence and the Senate Judiciary Committee concerning all requests forproduction of tangible things under 50 U.S.C. 1861. The Attorney General's report to the House andSenate Judiciary Committees would also have had to include the total number of applications madeunder 50 U.S.C. Â§ 1861, and the total number of such orders granted, modified or denied.

H.Amdt. 652 to H.R. 4754 . An amendment to add a new section to theCommerce-Justice-State appropriations bill prohibiting funds from being made available to makean application under Sec. 501 of FISA, 50 U.S.C. Â§ 1861, for an order requiring production of librarycirculation records, library patron lists, library internet records, book sales records, or book customerlists. Introduced by Representative Sanders on July 8, 2003. Amendment not agreed to by recordedvote 210-210, 1 present (Roll no. 339).

S. 113 . Official title as amended by the Senate: A bill to amend the ForeignIntelligence Surveillance Act of 1978 to cover individuals, other than United States persons, whoengage in international terrorism without affiliation with an international terrorist group. Introduced/originated in Senate on January 9, 2003, by Senator Jon Kyl. Referred to SenateJudiciary Committee. On March 11, 2003, reported out of the Senate Judiciary Committee bySenator Orrin Hatch with an amendment in the nature of a substitute and an amendment to the title,without written report Placed on Senate Legislative Calendar under General Orders, Calendar No.32. On April 29, 2003, Senate Judiciary Committee filed a written report, S.Rept. 108-40 ; additionalviews filed. On May 8, 2003, Referred to Senate Committee on Intelligence, pursuant to order ofMay 7, 2003; Senate Committee on Intelligence discharged same day. On May 8, 2003, passed theSenate with an amendment and an amendment to the title by Yea-Nay vote, 90-4 (Record VoteNumber 146). Received in House on May 9, 2003. Referred to the House Judiciary Committee, andin addition to the House Permanent Select Committee on Intelligence, for a period to be subsequentlydetermined by the Speaker, in each case for consideration of such provisions as fall within thejurisdiction of the committee concerned. On June 25, 2003, referred to Subcommittee on Crime,Terrorism, and Homeland Security. As passed the Senate and referred to the House, Sec. 1 of thebill amended Section 101(b)(1) of FISA, 50 U.S.C. Â§ 1801(b)(1) to include in the definition of agentof a foreign power non-U.S. persons who engage in international terrorism or activities inpreparation for international terrorism. The new subsection did not require that such persons beaffiliated with an international terrorist group, or foreign nation or group. It made the sunsetprovision in Sec. 224 of the USA PATRIOT Act, P.L. 107-56 applicable to this amendment. Sec.2 of the bill created new annual reporting requirements under FISA to be made by the AttorneyGeneral to the House Judiciary Committee, Senate Judiciary Committee, House Permanent SelectCommittee on Intelligence and Senate Committee on Intelligence.

S. 123 . A bill to exclude United States persons from the definition of "foreign power"under the Foreign Intelligence Surveillance Act of 1978 relating to international terrorism. Introduced by Senator Jon Kyl on January 9, 2003. Referred to Senate Judiciary Committee. Related bill, S. 113 . Sec. 1 of the bill would have amended the definition of a "foreignpower" under Section 101(a)(4), 50 U.S.C. Â§ 1801(a)(4), to include a person, other than a U.S.person, or a group that engages in international terrorism or activities in preparation therefor. Previously, this subsection had only covered groups engaged in international terrorism or activitiesin preparation for international terrorism.

S. 410 . Foreign Intelligence Collection Improvement Act of 2003, includingHomeland Intelligence Agency Act of 2003 and Foreign Intelligence Surveillance Public ReportingAct. A bill to establish the Homeland Intelligence Agency, and for other purposes. Introduced bySenator John Edwards on February 13, 2003. Referred to Senate Committee on Intelligence. TitleIII, Subtitle A, amended FISA reporting requirements with respect to electronic surveillance andphysical searches. It also would have required reporting, within discretion of Attorney General orDirector of Homeland Intelligence and in a manner consistent with protection of U.S. nationalsecurity, of significant interpretations of FISA, including, as appropriate, redacted portions ofopinions or orders of FISA court. Title III, Subtitle B, of the bill would have amended Title VI ofFISA to address participation by an official or agent of a proposed Homeland Intelligence Agencyin religious and political groups for foreign intelligence and international terrorism purposes. Subtitle III, Subtitle A, of S. 410 also provided reporting requirements with respect to suchundisclosed participation.

S. 436 . Domestic Surveillance Oversight Act of 2003. A bill to amend the ForeignIntelligence Surveillance Act of 1978 to improve the administration and oversight of foreignintelligence surveillance, and for other purposes. Introduced by Senator Patrick Leahy on February25, 2003. Referred to Senate Judiciary Committee. Among other things, the bill authorized ForeignIntelligence Surveillance Court (FISC) and Foreign Intelligence Court of Review (Court of Review)to establish rules and procedures and to take actions necessary to administer FISA. It requiredreporting of such rules and procedures and any modifications thereof to all of the judges of the FISCand the Court of Review, the Chief Justice of the United States, the House Judiciary Committee, theSenate Judiciary Committee, the House Permanent Select Committee on Intelligence and the SenateCommittee on Intelligence. It also established certain public reporting requirements with respect toelectronic surveillance, physical searches, pen registers, and business records production under FISA.

S. 578 . Tribal Government Amendments to the Homeland Security Act of 2002. Abill to amend the Homeland Security Act of 2002 to include Indian tribes among the entitiesconsulted with respect to activities carried out by the Secretary of Homeland Security, and for otherpurposes. Introduced by Senator Daniel K. Inouye on March 7, 2003. Referred to SenateGovernmental Affairs Committee. Hearings held before the Senate Select Committee on IndianAffairs on July 30, 2003, S. Hrg. 108-312. Sec. 12(g)(1) would have amended Section 106(k)(1) ofFISA, 50 U.S.C. Â§ 1806(k)(1), to permit federal officers who conduct electronic surveillance toacquire foreign intelligence information under FISA to consult, among others, with law enforcementpersonnel of an Indian tribe. Sec. 12(g)(2) would also have amended Section 305(k)(1) of FISA, 50U.S.C. Â§ 1825(k)(1), to permit federal officers who conduct a physical search under FISA to consult,among others, with law enforcement personnel of an Indian Tribe.

S. 1158 . Library and Bookseller Protection Act. A bill to exempt bookstores andlibraries from orders requiring the production of tangible things for foreign intelligenceinvestigations, and to exempt libraries from counterintelligence access to certain records, ensuringthat libraries and bookstores are subjected to the regular system of court ordered warrants. Introduced by Senator Barbara Boxer on May 23, 2003. Referred to Senate Judiciary Committee. Sec. 2 of the bill would have amended Section 501 of FISA, 50 U.S.C. Â§ 1861, to preclude anapplication for an order seeking or having the effect of searching for or seizing records of abookseller or library documentary materials concerning personally identifiable information regardinga patron of the library or bookstore. It did not preclude a physical search for such documentarymaterials under another provision of law.

S. 1507 . Library, Bookseller, and Personal Records Privacy Act. Introduced July 31,2003, by Senator Russell Feingold, and referred to the Senate Judiciary Committee. Sec. 2 of thebill would have required that applications for FISA orders for production of books, records, papers,documents, or other tangible things under 50 U.S.C. Â§ 1861, specify that there are specific andarticulable facts giving reason to believe that the person to whom the records pertain is a foreignpower or agent of a foreign power, and that the court, in issuing its order, find that there are specificand articulable facts giving reason to believe that the person to whom the records pertain is a foreignpower or an agent of a foreign power ant that the application meets the other requirements of 50U.S.C. Â§ 1861. Sec. 2 of the bill also amended 50 U.S.C. Â§ 1862 to require the Attorney General,on a semi-annual basis, to fully inform the House Permanent Select Committee on Intelligence, theHouse Judiciary Committee, the Senate Select Committee on Intelligence and the Senate JudiciaryCommittee concerning all requests for production of tangible things under 50 U.S.C. 1861. TheAttorney General's report to the House and Senate Judiciary Committees would also have includedthe total number of applications made under 50 U.S.C. Â§ 1861, and the total number of such ordersgranted, modified or denied.

S. 1552 . Protecting the Rights of Individuals Act. A bill to amend title 18, UnitedStates Code, and the Foreign Intelligence Surveillance Act of 1978 to strengthen protections of civilliberties in the exercise of the foreign intelligence surveillance authorities under Federal law, and forother purposes. Introduced by Senator Lisa Murkowski on July 31, 2003. Referred to SenateJudiciary Committee. Among other things, Sec. 4 of the bill amended Section 501 of FISA, 50U.S.C. Â§ 1861, the business records provision, to add as an additional requirement for an applicationfor a court order that it "include a statement of the facts and circumstances relied upon by theapplicant to justify the applicant's belief that the person to whom the records pertain is a foreignpower or an agent of a foreign power." It also provided that a judge enter an ex parte order asrequested or modified approving the release of records if the judge finds reason to believe that theperson to whom the records pertain is a foreign power or an agent of a foreign power; or, in the caseof medical records, library records, other records involving purchase or rental of books, video, ormusic, or accessing of legal and publicly available information through the internet, if the judge findsthat there is probable cause that the person to whom the records pertain is a foreign power or anagent of a foreign power. The application would also have had to meet other requirements of thesection. Sec. 5 of the bill amended Section 105(c) of FISA, 50 U.S.C. Â§ 1805(c), to eliminate JohnDoe roving wiretaps under FISA. Sec. 8 of the bill established certain public reporting requirementsunder FISA.

S. 1709 . Security and Freedom Ensured Act of 2003 or the SAFE Act. IntroducedOctober 2, 2003, by Senator Larry Craig, and referred to Senate Judiciary Committee. Sec. 2 of thebill would have amended the roving wiretap provisions of FISA to require that an order approvingsuch electronic surveillance specify either the identity of the target or the places and facilities towhich the electronic surveillance is to be directed. In cases where the facility or place is not knownat the time of the issuance of the order, Sec. 2 of the bill would have required that the electronicsurveillance only be conducted when the person conducting the surveillance has ascertained that thetarget is present at a particular facility or place. Sec. 4 of the bill would have required thatapplications for FISA orders for production of books, records, papers, documents, or other tangiblethings under 50 U.S.C. Â§ 1861, specify that there are specific and articulable facts giving reason tobelieve that the person to whom the records pertain is a foreign power or agent of a foreign power,and that the court, in issuing its order, find that there are specific and articulable facts giving reasonto believe that the person to whom the records pertain is a foreign power or an agent of a foreignpower ant that the application meets the other requirements of 50 U.S.C. Â§ 1861. Sec. 4 of the billalso amended 50 U.S.C. Â§ 1862 to require the Attorney General, on a semiannual basis, to fullyinform the House Permanent Select Committee on Intelligence, the House Judiciary Committee, theSenate Select Committee on Intelligence and the Senate Judiciary Committee concerning all requestsfor production of tangible things under 50 U.S.C. 1861.

S. 2528 . Civil Liberties Restoration Act of 2004. Introduced June 16, 2004, bySenator Edward Kennedy, and referred to the Senate Judiciary Committee. In the context ofelectronic surveillance or physical searches under FISA, Sec. 401 of the bill would have amendedFISA to permit, rather than require, relevant U.S. district courts, upon filing by the Attorney Generalof an affidavit under oath that disclosure or an adversary hearing would harm U.S. national security,to review in camera and ex parte the application, order, and other pertinent materials necessary todetermine whether the surveillance or physical search was lawfully authorized and conducted. Inmaking this determination with respect to an electronic surveillance, the court would have beenrequired to disclose, if otherwise discoverable, to the aggrieved person, his or her counsel, or both,under Classified Information Procedures Act (CIPA) procedures and standards, portions of theapplication, order, or other materials relating to the surveillance unless the court finds the disclosurewould not assist in determining any legal or factual issue pertinent to the case. The bill applied asimilar standard in the context of physical searches, but gave the court the option of requiring theAttorney General to provide the aggrieved person, his or her counsel, or both, a summary of suchmaterials relating to the physical search. In the context of pen registers or trap and trace devices, thebill would have required disclosure to the aggrieved person, his or her attorney, or both, under CIPAprocedures and standards, if otherwise discoverable, of portions of the application, order, or othermaterials relating to the use of the pen register or trap and trace device, or evidence or informationobtained or derived from the pen register or trap and trace device, unless such disclosure would notassist in determining any legal or factual issue pertinent to the case. In the context of 50 U.S.C. Â§1861, any disclosure of applications, information, or items submitted or acquired pursuant to a FISAorder for production of tangible things, if otherwise discoverable, would have had to be conductedunder CIPA procedures and standards.

S.Amdt. 536 to S. 113 . To establish additional annual reportingrequirements on activities under FISA. Introduced May 8, 2003, by Senator Feingold. Agreed tothe same day by Unanimous Consent. Under the amendment, the Attorney General was to reportannually in April to the House Judiciary Committee, House Permanent Select Committee onIntelligence, Senate Judiciary Committee and Senate Select Committee on Intelligence on (1) theaggregate number of non-U.S. persons targeted for FISA orders during the previous year, brokendown by electronic surveillance, physical searches, pen registers, or access to records under 50U.S.C. Â§ 1861; (2) the number of individual covered by an order issued under FISA who weredetermined pursuant to activities authorized by FISA to have acted wholly alone n activities coveredby the order; (3) the number of times the Attorney General authorized that information obtainedunder FISA or derivative information may be used in a criminal proceeding; and, (4) in a mannerconsistent with protection of U.S. national security, redacting the facts of any particular matter, theportions of the documents and applications filed with the Foreign Intelligence Surveillance Court(FISC) or the Foreign Intelligence Court of Review (Court of Review) that include significantconstruction or interpretation of the provisions of FISA and the portions of opinions or court ordersfrom the FISC or Court of Review which include significant construction or interpretation of FISAprovisions.