Terrorist Surveillance Act of 2006 - Amends the Foreign Intelligence Surveillance Act of 1978 (FISA) to establish a new title relating to electronic surveillance programs (programs). Gives the Foreign Intelligence Surveillance Court (established under FISA) jurisdiction to review programs that seek to obtain foreign intelligence information or to protect against international terrorism. Allows the Court to issue an order that authorizes a program for up to 90 days, while allowing the Attorney General (AG) an unlimited number of times to seek reauthorization of an order with respect to a specific target.
Outlines AG application requirements for approval of programs, including an explanation of how the program will ensure that communications acquired are of or with: (1) a foreign power, or agent of a foreign power, engaged in international terrorism; (2) a person believed to have communicated with or be associated with a foreign power or agent that engages in such activities; or (3) a foreign power or agent that poses an imminent threat of attack likely to cause death, serious bodily injury, or substantial economic damage to the United States.
Provides for congressional oversight of approved programs through regular AG reports to the congressional intelligence committees.
Directs the AG and the Director of National Intelligence to conduct a feasibility study to develop and implement a document management system that permits the prompt preparation, modification, and review of applications for orders approving programs by appropriate personnel of the Department of Justice (DOJ), Federal Bureau of Investigation (FBI), National Security Agency (NSA), and other applicable elements of the intelligence community.
Includes as an "agent of a foreign power" under FISA a person other than a U.S. person who engages in the development or proliferation of weapons of mass destruction, or activities in preparation therefor.
[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 3931 Introduced in Senate (IS)]
109th CONGRESS
2d Session
S. 3931
To establish procedures for the review of electronic surveillance
programs.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
September 22, 2006
Mr. McConnell (for himself and Mr. Frist) introduced the following
bill; which was read the first time pursuant to the order of September
21, 2006, as modified on September 22, 2006
_______________________________________________________________________
A BILL
To establish procedures for the review of electronic surveillance
programs.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Terrorist Surveillance Act of
2006''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) After the terrorist attacks of September 11, 2001,
President Bush authorized the National Security Agency to
intercept communications between people inside the United
States, including American citizens, and terrorism suspects
overseas.
(2) One of the lessons learned from September 11, 2001, is
that the enemies who seek to greatly harm and terrorize our
Nation utilize technologies and techniques that defy
conventional law enforcement practices.
(3) The President, as the constitutional officer most
directly responsible for protecting the United States from
attack, requires the ability and means to detect and track an
enemy that can master and exploit modern technology.
(4) It is equally essential, however, that in protecting
the United States against our enemies, the President does not
compromise the very civil liberties that he seeks to safeguard.
As Justice Hugo Black observed, ``The President's power, if
any, to issue [an] order must stem either from an Act of
Congress or from the Constitution itself.'' Youngstown Sheet &
Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952) (opinion by Black,
J.). Similarly, in 2004, Justice Sandra Day O'Connor explained
in her plurality opinion for the Supreme Court in Hamdi v.
Rumsfeld: ``We have long since made clear that a state of war
is not a blank check for the President when it comes to the
rights of the Nation's citizens.'' Hamdi v. Rumsfeld, 542 U.S.
507, 536 (2004) (citations omitted).
(5) When deciding issues of national security, it is in our
Nation's best interest that, to the extent feasible, all 3
branches of the Federal Government should be involved. This
helps guarantee that electronic surveillance programs do not
infringe on the constitutional rights of Americans, while at
the same time ensuring that the President has all the powers
and means necessary to detect and track our enemies and protect
our Nation from attack.
(6) As Justice Sandra Day O'Connor explained in her
plurality opinion for the Supreme Court in Hamdi v. Rumsfeld,
``Whatever power the United States Constitution envisions for
the Executive in its exchanges with other nations or with enemy
organizations in times of conflict, it most assuredly envisions
a role for all 3 branches when individual liberties are at
stake.'' Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (citations
omitted).
(7) Similarly, Justice Jackson famously explained in his
Youngstown concurrence: ``When the President acts pursuant to
an express or implied authorization of Congress, his authority
is at its maximum, for it includes all that he possesses in his
own right plus all that Congress can delegate ... When the
President acts in absence of either a congressional grant or
denial of authority, he can only rely upon his own independent
powers, but there is a zone of twilight in which he and
Congress may have concurrent authority, or in which its
distribution is uncertain. Therefore, congressional inertia,
indifference or quiescence may sometimes, at least as a
practical matter, enable, if not invite, measures on
independent presidential responsibility ... When the President
takes measures incompatible with the expressed or implied will
of Congress, his power is at its lowest ebb, for then he can
rely only upon his own constitutional powers minus any
constitutional powers of Congress over the matter. Courts can
sustain exclusive Presidential control in such a case only by
disabling the Congress from acting upon the subject.''
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38
(1952) (Jackson, J., concurring).
(8) Congress clearly has the authority to enact legislation
with respect to electronic surveillance programs. The
Constitution provides Congress with broad powers of oversight
over national security and foreign policy, under article I,
section 8 of the Constitution of the United States, which
confers on Congress numerous powers, including the powers--
(A) ``To declare War, grant Letters of Marque and
Reprisal, and make Rules concerning Captures on Land
and Water'';
(B) ``To raise and support Armies'';
(C) ``To provide and maintain a Navy'';
(D) ``To make Rules for the Government and
Regulation of the land and naval Forces'';
(E) ``To provide for calling forth the Militia to
execute the Laws of the Union, suppress Insurrections
and repel Invasions''; and
(F) ``To provide for organizing, arming, and
disciplining the Militia, and for governing such Part
of them as may be employed in the Service of the United
States''.
(9) While Attorney General Alberto Gonzales explained that
the executive branch reviews the electronic surveillance
program of the National Security Agency every 45 days to ensure
that the program is not overly broad, it is the belief of
Congress that approval and supervision of electronic
surveillance programs should be conducted outside of the
executive branch, by the article III court established under
section 103 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1803) and the congressional intelligence
committees. It is also the belief of Congress that it is
appropriate for an article III court to pass upon the
constitutionality of electronic surveillance programs that may
be directed at Americans.
(10) The Foreign Intelligence Surveillance Court is the
proper court to approve and supervise classified electronic
surveillance programs because it is adept at maintaining the
secrecy with which it was charged and it possesses the
requisite expertise and discretion for adjudicating sensitive
issues of national security.
(11) In 1975, [then] Attorney General Edward Levi, a strong
defender of executive authority, testified that in times of
conflict, the President needs the power to conduct long-range
electronic surveillance and that a foreign intelligence
surveillance court should be empowered to issue special
approval orders in these circumstances.
(12) Granting the Foreign Intelligence Surveillance Court
the authority to review electronic surveillance programs and
pass upon their constitutionality is consistent with well-
established, longstanding practices.
(13) The Foreign Intelligence Surveillance Court already
has broad authority to approve surveillance of members of
international conspiracies, in addition to granting warrants
for surveillance of a particular individual under sections 104,
105, and 402 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1804, 1805, and 1842).
(14) Prosecutors have significant flexibility in
investigating domestic conspiracy cases. Courts have held that
flexible warrants comply with the 4th amendment to the
Constitution of the United States when they relate to complex,
far-reaching, and multifaceted criminal enterprises like drug
conspiracies and money laundering rings. The courts recognize
that applications for search warrants must be judged in a
common sense and realistic fashion, and the courts permit broad
warrant language where, due to the nature and circumstances of
the investigation and the criminal organization, more precise
descriptions are not feasible.
(15) The Supreme Court, in the ``Keith Case'', United
States v. United States District Court for the Eastern District
of Michigan, 407 U.S. 297 (1972), recognized that the standards
and procedures used to fight ordinary crime may not be
applicable to cases involving national security. The Court
recognized that national ``security surveillance may involve
different policy and practical considerations from the
surveillance of ordinary crime'' and that courts should be more
flexible in issuing warrants in national security cases. United
States v. United States District Court for the Eastern District
of Michigan, 407 U.S. 297, 322 (1972).
(16) By authorizing the Foreign Intelligence Surveillance
Court to review electronic surveillance programs, Congress
enables the President to use the necessary means to guard our
national security, while also protecting the civil liberties
and constitutional rights that we cherish.
SEC. 3. DEFINITIONS.
The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801
et seq.) is amended--
(1) by redesignating title VII as title VIII;
(2) by redesignating section 701 as section 801; and
(3) by inserting after title VI the following:
``TITLE VII--ELECTRONIC SURVEILLANCE PROGRAMS
``SEC. 701. DEFINITIONS.
``As used in this title--
``(1) the terms `agent of a foreign power', `Attorney
General', `contents', `electronic surveillance', `foreign
power', `international terrorism', `minimization procedures',
`person', `United States', and `United States person' have the
same meaning as in section 101;
``(2) the term `congressional intelligence committees'
means the Select Committee on Intelligence of the Senate and
the Permanent Select Committee on Intelligence of the House of
Representatives;
``(3) the term `electronic surveillance program' means a
program to engage in electronic surveillance--
``(A) that has as a significant purpose the
gathering of foreign intelligence information or
protecting against international terrorism;
``(B) where it is not feasible to name every
person, address, or location to be subjected to
electronic surveillance;
``(C) where effective gathering of foreign
intelligence information requires the flexibility to
begin electronic surveillance immediately after
learning of suspect activity; and
``(D) where effective gathering of foreign
intelligence information requires an extended period of
electronic surveillance;
``(4) the term `foreign intelligence information' has the
same meaning as in section 101(e) and includes information
necessary to protect against international terrorism;
``(5) the term `Foreign Intelligence Surveillance Court'
means the court established under section 103(a); and
``(6) the term `Foreign Intelligence Surveillance Court of
Review' means the court established under section 103(b).''.
SEC. 4. FOREIGN INTELLIGENCE SURVEILLANCE COURT JURISDICTION TO REVIEW
ELECTRONIC SURVEILLANCE PROGRAMS.
(a) In General.--Title VII of the Foreign Intelligence Surveillance
Act of 1978, as amended by section 3, is amended by adding at the end
the following:
``SEC. 702. FOREIGN INTELLIGENCE SURVEILLANCE COURT JURISDICTION TO
REVIEW ELECTRONIC SURVEILLANCE PROGRAMS.
``(a) Authorization of Review.--
``(1) Initial authorization.--The Foreign Intelligence
Surveillance Court shall have jurisdiction to issue an order
under this title, lasting not longer than 90 days, that
authorizes an electronic surveillance program to obtain foreign
intelligence information or to protect against international
terrorism.
``(2) Reauthorization.--The Foreign Intelligence
Surveillance Court shall have jurisdiction to reauthorize an
electronic surveillance program for a period of time not longer
than such court determines to be reasonable. There shall be no
limit on the number of times the Attorney General may seek
reauthorization of an electronic surveillance program.
``(3) Resubmission or appeal.--In the event that the
Foreign Intelligence Surveillance Court refuses to approve an
application under this subsection, the court shall state its
reasons in a written opinion, which it shall submit to the
Attorney General. The Attorney General or his designee may
submit a new application under section 703 for the electronic
surveillance program, with no limit on the number of
resubmissions that may be made. Alternatively, the Attorney
General may appeal the decision of the Foreign Intelligence
Surveillance Court to the Foreign Intelligence Surveillance
Court of Review.
``(4) Continued surveillance under title i.--
``(A) In general.--If, at any time, the Attorney
General determines that the known facts and
circumstances relating to any target within the United
States under this title satisfy the criteria for an
application under section 104 for an order for
electronic surveillance of the target under section
105, the Attorney General shall--
``(i) discontinue the surveillance of the
target under this title; or
``(ii) continue the surveillance of the
target under this title, subject to the
requirements of subparagraph (B).
``(B) Continuation of surveillance.--
``(i) In general.--The Attorney General may
continue surveillance of a target under this
title as specified in subparagraph (A)(ii) only
if the Attorney General makes an application
under section 104 for an order for electronic
surveillance of the target under section 105 as
soon as the Attorney General determines
practicable after the date on which the
Attorney General makes the determination to
continue surveillance of the target under
subparagraph (A)(ii).
``(ii) Period.--The period during which the
Attorney General may continue surveillance of a
target under this title after the Attorney
General has determined that making an
application is practicable shall be limited to
a reasonable period, as determined by the
Attorney General, during which the application
is prepared and the period during which the
application of the Attorney General under
section 104 for an order for electronic
surveillance of the target under section 105 is
pending under title I, including during any
period in which appeal from the denial of the
application is pending with the Foreign
Intelligence Surveillance Court of Review or
the Supreme Court under section 103(b).
``(b) Mandatory Transfer for Review.--
``(1) In general.--In any case before any court challenging
the legality of classified communications intelligence activity
relating to a foreign threat, including an electronic
surveillance program, or in which the legality of any such
activity or program is in issue, if the Attorney General files
an affidavit under oath that the case should be transferred to
the Foreign Intelligence Surveillance Court of Review because
further proceedings in the originating court would harm the
national security of the United States, the originating court
shall transfer the case of the Foreign Intelligence
Surveillance for further proceedings under this subsection.
``(2) Procedures for review.--The Foreign Intelligence
Surveillance Court shall have jurisdiction as appropriate to
determine standing and the legality of the program to the
extent necessary for resolution of the underlying case. All
proceedings under this paragraph shall be conducted in
accordance with the procedures set forth in section 106(f). In
the event the Foreign Intelligence Surveillance Court
determines that, in the context of a criminal proceeding, the
Constitution of the United States would require the disclosure
of national security information, any such constitutionally
required disclosure shall be governed by the Classified
Information Procedures Act, (18 U.S.C. App.), or if applicable,
section 2339B(f) of title 18, United States Code.
``(3) Appeal, certiorari, and effects of decisions.--The
decision of the Foreign Intelligence Surveillance Court made
under paragraphs (1) and (2), including a decision that the
disclosure of national security information is constitutionally
required, shall be subject to review by the Foreign
Intelligence Surveillance Court of Review under section 103(b).
The Supreme Court of the United States shall have jurisdiction
to review decisions of the Foreign Intelligence Surveillance
Court of Review by writ of certiorari granted upon the petition
of the United States. The decision by the Foreign Intelligence
Surveillance Court shall otherwise be binding in all other
courts.
``(4) Dismissal.--The Foreign Intelligence Surveillance
Court or a court that is an originating court under paragraph
(1) may dismiss a challenge to the legality of an electronic
surveillance program for any reason provided for under law.
``(5) Preservation of litigation privileges.--Nothing in
this Act shall be construed to abrogate, limit, or affect any
litigation privileges in any court.''.
SEC. 5. APPLICATIONS FOR APPROVAL OF ELECTRONIC SURVEILLANCE PROGRAMS.
Title VII of the Foreign Intelligence Surveillance Act of 1978, as
amended by section 4, is amended by adding at the end the following:
``SEC. 703. APPLICATIONS FOR APPROVAL OF ELECTRONIC SURVEILLANCE
PROGRAMS.
``(a) In General.--Each application for approval of an electronic
surveillance program under this title (including resubmission or
application for reauthorization) shall--
``(1) be made by the Attorney General or his designee;
``(2) include a statement of the authority conferred on the
Attorney General by the President of the United States;
``(3) include a statement setting forth the legal basis for
the conclusion by the Attorney General that the electronic
surveillance program is consistent with the Constitution of the
United States;
``(4) certify that a significant purpose of the electronic
surveillance program is to obtain foreign intelligence
information or to protect against international terrorism;
``(5) certify that the information sought cannot reasonably
be obtained by normal investigative techniques
``(6) certify that the information sought cannot reasonably
be obtained through an application under section 104;
``(7) include a statement of the means and operational
procedures by which the electronic surveillance will be
executed and effected;
``(8) include an explanation of how the electronic
surveillance program is reasonably designed to ensure that the
communications that are acquired are communications of or
with--
``(A) a foreign power that engages in international
terrorism or activities in preparation therefor;
``(B) an agent of a foreign power that engages in
international terrorism or activities in preparation
therefor;
``(C) a person reasonably believed to have
communication with or be associated with a foreign
power that engages in international terrorism or
activities in preparation therefor or an agent of a
foreign power that engages in international terrorism
or activities in preparation therefor; or
``(D) a foreign power that poses an imminent threat
of attack likely to cause death, serious injury, or
substantial economic damage to the United States, or an
agent of a foreign power thereof;
``(9) include a statement of the proposed minimization
procedures;
``(10) if the electronic surveillance program that is the
subject of the application was initiated prior to the date the
application was submitted, specify the date that the program
was initiated;
``(11) include a description of all previous applications
that have been made under this title involving the electronic
surveillance program in the application (including the
minimization procedures and the means and operational
procedures proposed) and the decision on each previous
application; and
``(12) include a statement of facts concerning the
implementation of the electronic surveillance program described
in the application, including, for any period of operation of
the program authorized not less than 90 days prior to the date
of submission of the application--
``(A) the minimization procedures implemented; and
``(B) the means and operational procedures by which
the electronic surveillance was executed and effected.
``(b) Additional Information.--The Foreign Intelligence
Surveillance Court may require the Attorney General to furnish such
other information as may be necessary to make a determination under
section 704.''.
SEC. 6. APPROVAL OF ELECTRONIC SURVEILLANCE PROGRAMS.
Title VII of the Foreign Intelligence Surveillance Act 18 of 1978,
as amended by section 5, is amended by adding at the end the following:
``SEC. 704. APPROVAL OF ELECTRONIC SURVEILLANCE PROGRAMS.
``(a) Necessary Findings.--Upon receipt of an application under
section 703, the Foreign Intelligence Surveillance Court shall enter an
ex parte order as requested, or as modified, approving the electronic
surveillance program if it finds that--
``(1) the President has authorized the Attorney General to
make the application for electronic surveillance for foreign
intelligence information or to protect against international
terrorism;
``(2) approval of the electronic surveillance program in
the application is consistent with the Constitution of the
United States;
``(3) the electronic surveillance program is reasonably
designed to ensure that the communications that are acquired
are communications of or with--
``(A) a foreign power that engages in international
terrorism or activities in preparation therefor;
``(B) an agent of a foreign power that is engaged
in international terrorism or activities in preparation
therefor;
``(C) a person reasonably believed to have
communication with or be associated with a foreign
power that is engaged in international terrorism or
activities in preparation therefor or an agent of a
foreign power that is engaged in international
terrorism or activities in preparation therefor; or
``(D) a foreign power that poses an imminent threat
of attack likely to cause death, serious injury, or
substantial economic damage to the United States, or an
agent of a foreign power thereof;
``(4) the proposed minimization procedures meet the
definition of minimization procedures under section 101(h); and
``(5) the application contains all statements and
certifications required by section 703.
``(b) Considerations.--In considering the constitutionality of the
electronic surveillance program under subsection (a), the Foreign
Intelligence Surveillance Court may consider--
``(1) whether the electronic surveillance program has been
implemented in accordance with the proposal by the Attorney
General, by comparing--
``(A) the minimization procedures proposed with the
minimization procedures actually implemented;
``(B) the nature of the information sought with the
nature of the information actually obtained; and
``(C) the means and operational procedures proposed
with the means and operational procedures actually
implemented; and
``(2) whether foreign intelligence information has been
obtained through the electronic surveillance program.
``(c) Contents of Order.--An order approving an electronic
surveillance program under this section shall direct--
``(1) that the minimization procedures be followed;
``(2) that, upon the request of the applicant, specified
communication or other common carriers, landlords, custodians,
or other specified persons, furnish the applicant forthwith
with all information, facilities, or technical assistance
necessary to undertake the electronic surveillance program in
such a manner as will protect its secrecy and produce a minimum
of interference with the services that such carriers,
landlords, custodians, or other persons are providing potential
targets of the electronic surveillance program;
``(3) that any records concerning the electronic
surveillance program or the aid furnished or retained by such
carriers, landlords, custodians, or other persons are
maintained under security procedures approved by the Attorney
General and the Director of National Intelligence; and
``(4) that the applicant compensate, at the prevailing
rate, such carriers, landlords, custodians, or other persons
for furnishing such aid.''.
SEC. 7. CONGRESSIONAL OVERSIGHT.
Title VII of the Foreign Intelligence Surveillance Act of 1978, as
amended by section 6, is amended by adding at the end the following:
``SEC. 705. CONGRESSIONAL OVERSIGHT.
``(a) In General.--Not less often than every 180 days, the Attorney
General shall submit to the congressional intelligence committees a
report in classified form on the activities during the previous 180-day
period under any electronic surveillance program authorized under this
title.
``(b) Contents.--Each report submitted under subsection (a) shall
provide, with respect to the previous 180-day period, a description
of--
``(1) the minimization procedures implemented;
``(2) the means and operational procedures by which the
electronic surveillance program was executed and effected;
``(3) significant decisions of the Foreign Intelligence
Surveillance Court on applications made under section 703;
``(4) the total number of applications made for orders
approving electronic surveillance programs pursuant to this
title; and
``(5) the total number of orders applied for that have been
granted, modified, or denied.
``(c) Rule of Construction.--Nothing in this title shall be
construed to limit the authority or responsibility of any committee of
either House of Congress to obtain such information as such committee
may need to carry out its respective functions and duties.''.
SEC. 8. CLARIFICATION OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF
1978.
(a) Repeal.--Sections 111, 309, and 404 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1811, 1829, and 1844) are repealed.
(b) Clarifying Amendments.--
(1) Title 18.--Section 2511(2) of title 18, United States
Code, is amended--
(A) in paragraph (e), by striking ``, as defined in
section 101'' and all that follows through the end of
the paragraph and inserting the following: ``under the
Constitution or the Foreign Intelligence Surveillance
Act of 1978.''; and
(B) in paragraph (f), by striking ``from
international or foreign communications,'' and all that
follows through the end of the paragraph and inserting
``that is authorized under a Federal statute or the
Constitution of the United States.''.
(2) FISA.--Section 109 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1809) is amended--
(A) in subsection (a)--
(i) in paragraph (1)--
(I) by striking ``authorized by
statute'' and inserting ``authorized by
law''; and
(II) by striking ``or'' at the end;
(ii) in paragraph (2)--
(I) by striking ``authorized by
statute'' and inserting ``authorized by
law''; and
(II) by striking the period and
inserting ``; or''; and
(iii) by adding at the end the following:
``(3) and knowingly discloses or uses information obtained
under color of law by electronic surveillance in a manner or
for a purpose not authorized by law.''; and
(B) in subsection (c)--
(i) by striking ``$10,000'' and inserting
``$100,000''; and
(ii) by striking ``five years'' and
inserting ``15 years''.
SEC. 9. MODERNIZING AMENDMENTS TO FISA.
(a) Reference.--In this section, a reference to ``FISA'' shall mean
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.).
(b) Definitions.--Section 101 of FISA (50 U.S.C. 1801) is amended--
(1) in subsection (b)(1)--
(A) in subparagraph (C), by striking ``or'' after
the semicolon; and
(B) by adding at the end the following:
``(D) otherwise is reasonably expected to possess,
control, transmit, or receive foreign intelligence
information while that person is in the United States,
provided that the official making the certification
required by section 104(a)(6) deems such foreign
intelligence information to be significant; or'';
(2) by striking subsection (f) and inserting the following:
``(f) `Electronic surveillance' means--
``(1) the installation or use of an electronic, mechanical,
or other surveillance device for acquiring information by
intentionally directing the 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
enforcement 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, and if both the sender
and all intended recipients are reasonably believed to be
located within the United States.'';
(3) in subsection (h), by striking paragraph (4) and
inserting the following:
``(4) notwithstanding paragraphs (1), (2), and (3), with
respect to any electronic surveillance approved pursuant to
section 102 or 704, procedures that require that no contents of
any communication originated or sent by a United States person
shall be disclosed, disseminated, used or retained for longer
than 7 days unless a court order under section 105 is obtained
or unless the Attorney General determines that the information
indicates a threat of death or serious bodily harm to any
person.''.
(4) by striking subsection (l); and
(5) by striking subsection (n) and inserting the following:
``(n) `contents', when used with respect to a communication,
includes any information concerning the substance, symbols, sounds,
words, purport, or meaning of a communication, and does not include
dialing, routing, addressing, or signaling information.''.
(c) Electronic Surveillance Authorization.--Section 102 of FISA (50
U.S.C. 1802) is amended to read as follows:
``electronic surveillance authorization without court order;
certification by attorney general; reports to congressional committees;
transmittal under seal; duties and compensation of communication common
carrier; applications; jurisdiction of court
``Sec. 102. (a)(1) Notwithstanding any other law, the President
through the Attorney General, may authorize electronic surveillance
without a court order under this title to acquire foreign intelligence
information for periods of up to 1 year if the Attorney General
certifies in writing under oath that the electronic surveillance is
directed at--
``(A)(i) the acquisition of the contents of communications
of foreign powers, as defined in paragraph (1), (2), or (3) of
section 101(a), or a person other than a United States person
acting as an agent of a foreign power, as defined in section
101(b)(1)(A) or (B); or
``(ii) the acquisition of technical intelligence, 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
``(B) 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 procedures and any
changes thereto to the Select Committee on Intelligence of the Senate
and the Permanent Select Committee on Intelligence of the House of
Representatives at least 30 days prior to their effective date, unless
the Attorney General determines immediate action is required and
notifies the committees immediately of such minimization procedures and
the reason for their becoming effective immediately.
``(2) An electronic surveillance authorized by this subsection may
be conducted only in accordance with the Attorney General's
certification and the minimization procedures. The Attorney General
shall assess compliance with such procedures and shall report such
assessments to the Select Committee on Intelligence of the Senate and
the Permanent Select Committee on Intelligence of the House of
Representatives under section 108(a). If an electronic surveillance
authorized by this subsection is directed at an agent of a foreign
power, the Attorney General's report assessing compliance with the
minimization procedures shall also include a statement of the facts and
circumstances relied upon to justify the belief that the target of the
electronic surveillance is an agent of a foreign power.
``(3) The Attorney General shall immediately transmit under seal to
the court established under section 103(a) a copy of any certification
under this subsection. Such certification shall be maintained under
security 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--
``(A) an application for a court order with respect to the
surveillance is made under section 104; or
``(B) the certification is necessary to determine the
legality of the surveillance under section 106(f).
``(b)(1) Notwithstanding any other provision of law, the President,
through the Attorney General, may authorize the acquisition of foreign
intelligence information for periods of up to 1 year concerning a
person reasonably believed to be outside the United States if the
Attorney General certifies in writing under oath that he has determined
that--
``(A) the acquisition does not constitute electronic
surveillance as defined in section 101(f);
``(B) the acquisition involves obtaining the foreign
intelligence information from or with the assistance of a wire
or electronic communications service provider, custodian, or
other person (including any officer, employee, agent, or other
specified person thereof) 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;
``(C) a significant purpose of the acquisition is to obtain
foreign intelligence information; and
``(D) the minimization procedures to be employed with
respect to such acquisition activity meet the definition of
minimization procedures under section 101(h).
``(2) Such certification need not identify the specific facilities,
places, premises, or property at which the acquisition will be
directed.
``(3) An acquisition undertaken pursuant to this subsection may be
conducted only in accordance with the Attorney General's certification
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 Select Committee on Intelligence of the
Senate and the Permanent Select Committee on Intelligence of the House
of Representatives under section 108(a).
``(4) The Attorney General shall immediately transmit under seal to
the court established under section 103(a) a copy of any certification
of the Attorney General under this subsection. Such certification shall
be maintained under security 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 the
certification is necessary to determine the legality of the acquisition
under subsection (o).
``(c) With respect to the acquisition authorized under this
section, the Attorney General may direct a specified person to--
``(1) furnish the government forthwith all information,
facilities, and assistance necessary to accomplish the
acquisition in such a manner as will protect its secrecy and
produce a minimum of interference with the services that such
person is providing to the target; and
``(2) maintain under security procedures approved by the
Attorney General and the Director of National Intelligence any
records concerning the acquisition or the aid furnished that
such person wishes to maintain.
``(d) The government shall compensate, at the prevailing rate, such
specified person for furnishing the aid set forth in subsection (c).
``(e) In the case of a failure to comply with a directive issued
pursuant to this section, the Attorney General may invoke the aid of
the court established under section 103(a) to compel compliance with
the directive. The court shall issue an order requiring the person or
entity to comply with the directive forthwith if it finds that the
directive was issued in accordance with subsection (a) or (b) and is
otherwise lawful. Any failure to obey the order of the court may be
punished by the court as contempt thereof. Any process under this
section may be served in any judicial district in which the person or
entity may be found.
``(f)(1)(A) A person receiving an Attorney General directive issued
pursuant to this section may challenge the legality of that directive
by filing a petition with the pool established by section 103(e)(1).
``(B) The presiding judge shall immediately assign a petition 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 petition is frivolous, the assigned
judge shall immediately deny the petition and affirm the directive or
any part thereof that is the subject of the petition. If the assigned
judge determines 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 reasons for any determination under
this subsection.
``(2) 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 immediately affirm such directive, and order
the recipient to comply therewith.
``(3) Any directive not explicitly modified or set aside consistent
with this subsection shall remain in full effect.
``(g) A petition for review of a decision under subsection (f) to
affirm, modify, or set aside a directive by the Government or any
person receiving such directive shall be made within 7 days of issuance
of the decision required by subsection (f) to the court of review
established under section 103(b), which shall have jurisdiction to
consider such petitions. The court of review shall provide for the
record a written statement of the reasons for its decision and, 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 of the United States, which shall have jurisdiction to
review such decision.
``(h) 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 Intelligence.
``(i) All petitions under this section shall be filed under seal.
In any proceedings under this section, the court shall, upon request of
the Government, review ex parte and in camera any Government
submission, or portions thereof, which may include classified
information.
``(j) No cause of action shall lie in any court against any
provider of a communication service or other person (including any
officer, employee, agent, or other specified person thereof) for
furnishing any information, facilities, or assistance in accordance
with a directive under subsection (a) or (b).
``(k) Information acquired pursuant to an Attorney General
authorization 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 subsection (a) or (b), as
applicable. No otherwise privileged communication obtained in
accordance with, or in violation of, the provisions of this section
shall lose its privileged character. No information from an acquisition
under this section may be used or disclosed by Federal officers or
employees except for lawful purposes.
``(l) No information acquired pursuant to this section shall be
disclosed for law enforcement purposes unless such disclosure is
accompanied by a statement that such information, or any information
derived therefrom, may only be used in a criminal proceeding with the
advance authorization of the Attorney General.
``(m) Whenever the Government intends 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 acquisition under this section,
the Government shall, prior to the trial, hearing, or other proceeding
or at a reasonable time prior to an effort to so disclose or so use
that information or submit it in evidence, notify the aggrieved person
and the court or other authority in which the information is to be
disclosed or used that the Government intends to so disclose or so use
such information.
``(n) Whenever any State or political subdivision thereof intends
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 a State or a
political subdivision thereof, against an aggrieved person any
information obtained or derived from an acquisition under this section,
the State or political subdivision thereof 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 thereof intends to so disclose or so use such information.
``(o) Any person against whom evidence obtained or derived from an
acquisition authorized pursuant to this section to which he is an
aggrieved person is to be, or has been, introduced or otherwise 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 obtained or derived from such acquisition
on the grounds that--
``(1) the information was unlawfully acquired; or
``(2) the acquisition was not made in conformity 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.
``(p) Whenever a court or other authority is notified pursuant to
subsection (m) or (n), whenever a motion is made pursuant to subsection
(o), or whenever any motion 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 an Attorney General directive or other materials
relating to the acquisition authorized under this section or to
discover, obtain, or suppress evidence or information obtained or
derived from the acquisition authorized under this section, the United
States district court or, where the motion is made before another
authority, the United States district court in the same district 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 national security of the United States, review
in camera and ex parte the directive, and such other materials relating
to the acquisition as may be necessary to determine whether the
acquisition authorized under this section was lawfully authorized and
conducted. In making this determination, the court may disclose to the
aggrieved person, under appropriate security procedures and protective
orders, portions of the directive or other materials relating to the
acquisition only where such disclosure is necessary to make an accurate
determination of the legality of the acquisition.
``(q) If the United States district court pursuant to subsection
(o) determines that the acquisition authorized under this section was
not lawfully authorized or conducted, it shall, in accordance with the
requirements of law, suppress the evidence which was unlawfully
obtained or derived or otherwise grant the motion of the aggrieved
person. If the court determines that such acquisition was lawfully
authorized and conducted, it shall deny the motion of the aggrieved
person except to the extent that due process requires discovery or
disclosure.
``(r) Orders granting motions or requests under subsection (o),
decisions under this section that an acquisition was not lawfully
authorized or conducted, and orders of the United States district court
requiring review or granting disclosure of directives or other
materials relating to such acquisition 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.
``(s) Federal officers who acquire foreign intelligence information
under this section may consult with Federal law enforcement officers or
law enforcement personnel of a State or political subdivision of a
State (including the chief executive officer of that State or political
subdivision who has the authority to appoint or direct the chief law
enforcement officer of that State or political subdivision) to
coordinate efforts to investigate or protect against--
``(1) actual or potential attack or other grave hostile
acts of a foreign power or an agent of a foreign power;
``(2) sabotage, international terrorism, or the development
or proliferation of weapons of mass destruction by a foreign
power or an agent of a foreign power; or
``(3) clandestine intelligence activities by an
intelligence service or network of a foreign power or by an
agent of a foreign power.
``(t) Coordination authorized by subsection (s) shall not preclude
the certification required by subsection (a) or (b), as applicable.
``(u) Retention of Directives and Orders.--Directives made and
orders granted under this section shall be retained for a period of at
least 10 years from the date when they were made.''.
(d) Designation of Judges.--Section 103 of FISA (50 U.S.C. 1803) is
amended--
(1) in subsection (a), by inserting, ``at least'' before
``seven of the United States judicial circuits''; and
(2) at the end by adding the following new subsection:
``(g) Applications for a court order under this title are
authorized if the President has, by written authorization, empowered
the Attorney General to approve applications to the court having
jurisdiction under this section, and a judge to whom an application is
made may, notwithstanding any other law, grant an order, in conformity
with section 105, approving electronic surveillance of a foreign power
or an agent of a foreign power for the purpose of obtaining foreign
intelligence information.''.
(e) Applications for Court Orders.--Section 104 of FISA (50 U.S.C.
1804) is amended--
(1) in subsection (a), by striking paragraphs (6) through
(11) and inserting the following:
``(6) a certification or certifications by the Assistant to
the President for National Security Affairs or an executive
branch official authorized by the President to conduct
electronic surveillance for foreign intelligence purposes--
``(A) that the certifying official deems the
information sought to be foreign intelligence
information;
``(B) that a significant purpose of the
surveillance is to obtain foreign intelligence
information;
``(C) that such information cannot reasonably be
obtained by normal investigative techniques; and
``(D) including a statement of the basis for the
certification that--
``(i) the information sought is the type of
foreign intelligence information designated;
and
``(ii) such information cannot reasonably
be obtained by normal investigative techniques;
``(7) a statement of the period of time for which the
electronic surveillance is required to be maintained, and if
the nature of the intelligence gathering is such that the
approval of the use of electronic surveillance under this title
should not automatically terminate when the described type of
information has first been obtained, a description of facts
supporting the belief that additional information of the same
type will be obtained thereafter;
``(8) a summary description of the nature of the
information sought and the type of communications or activities
to be subject to the surveillance;
``(9) a summary statement of the facts concerning all
previous applications that have been made to any judge under
this title involving any of the persons, facilities, or places
specified in the application, and the action taken on each
previous application; and
``(10) a summary statement of the means by which the
surveillance will be effected and a statement whether physical
entry is required to effect the surveillance.'';
(2) by striking subsection (b);
(3) by redesignating subsections (c) through (e) as
subsections (b) through (d), respectively; and
(4) in subsection (d)(1)(A), as redesignated by paragraph
(3), by inserting after ``Secretary of State'' inserting
``Director of the Central Intelligence Agency''.
(f) Issuance of Order.--Section 105 of FISA (50 U.S.C. 1805) is
amended--
(1) in subsection (a), by--
(A) striking paragraph (1); and
(B) redesignating paragraphs (2) through (5) as
paragraphs (1) through (4), respectively;
(2) by striking paragraph (1) of subsection (c) and
inserting the following:
``(1) An order approving an electronic surveillance under
this section shall specify--
``(A) the identity, if known, or a description of
the target of the electronic surveillance identified or
described in the application pursuant to section
104(a)(3);
``(B) the nature and location of each of the
facilities or places at which the electronic
surveillance will be directed, if known;
``(C) the period of time during which the
electronic surveillance is approved;
``(D) the type of information sought to be acquired
and the type of communications or activities to be
subjected to the surveillance; and
``(E) the means by which the electronic
surveillance will be effected and whether physical
entry will be used to effect the surveillance.'';
(3) by striking subsection (d) and inserting the following:
``(d) Each order under this section shall specify the type of
electronic surveillance involved, including whether physical entry is
required.'';
(4) by striking paragraph (2) of subsection (e) and
inserting the following:
``(2) Extensions of an order issued under this title may be granted
on the same basis as an original order upon an application for an
extension and new findings made in the same manner as required for an
original order and may be for a period not longer than the court
determines to be reasonable or 1 year, whichever is less.'';
(5) by striking subsection (f) and inserting the following:
``(f)(1) Notwithstanding any other provision of this title, when an
executive branch officer appointed by the President with the advice and
consent of the Senate who is authorized by the President to conduct
electronic surveillance reasonably determines that--
``(A) an emergency situation exists with respect to the
employment of electronic surveillance to obtain foreign
intelligence information before an order authorizing such
surveillance can with due diligence be obtained; and
``(B) the factual basis for issuance of an order under this
title to approve such surveillance exists;
that official may authorize the emergency employment of electronic
surveillance in accordance with paragraph (2).
``(2) Under paragraph (1), the following requirements shall be
satisfied:
``(A) The Attorney General shall be informed of the
emergency electronic surveillance.
``(B) A judge having jurisdiction under section 103 shall
be informed by the Attorney General or his designee as soon as
practicable following such authorization that the decision has
been made to employ emergency electronic surveillance.
``(C) An application in accordance with this title shall be
made to that judge or another judge having jurisdiction under
section 103 as soon as practicable, but not more than 7 days
after such surveillance is authorized. In the absence of a
judicial order approving such electronic surveillance, the
surveillance shall terminate when the information sought is
obtained, when the application for the order is denied, or
after the expiration of 7 days from the time of emergency
authorization, whichever is earliest. In the event that such
application for approval 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 derived from such surveillance shall be received in
evidence or otherwise disclosed in any trial, hearing, or other
proceeding 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 made under this
subsection may be reviewed as provided in section 103.
``(D) The official authorizing the emergency employment of
electronic surveillance shall require that the minimization
procedures required by this title for the issuance of a
judicial order be followed.''; and
(6) in subsection (i)--
(A) by striking ``a wire or'' and inserting
``any'';
(B) by striking ``chapter'' and inserting
``title''; and
(C) by adding at the end ``, or in response to
certification by the Attorney General or his designee
seeking information, facilities, or technical
assistance from such person under section 102 of this
title''.
(g) Use of Information.--Section 106 of FISA (50 U.S.C. 1806) is
amended--
(1) in subsection (i)--
(A) by striking ``radio''; and
(B) by inserting ``contain foreign intelligence
information or'' after ``the Attorney General
determines that the contents'' inserting ``contain
foreign intelligence information or''; and
(2) in subsection (k), by striking ``1804(a)(7)'' and
inserting ``104(a)(6)''.
(h) Congressional Oversight.--Section 108 of FISA (50 U.S.C. 1808)
is amended by adding at the end the following:
``(c) Document Management System for Applications for Orders
Approving Electronic Surveillance.--
``(1) System proposed.--The Attorney General and Director
of National Intelligence shall, in consultation with the
Director of the Federal Bureau of Investigation, the Director
of the National Security Agency, the Director of the Central
Intelligence Agency, and the court established under section
103(b), conduct a feasibility study to develop and implement a
secure, classified document management system that permits the
prompt preparation, modification, and review by appropriate
personnel of the Department of Justice, the Federal Bureau of
Investigation, the National Security Agency, and other
applicable elements of the United States Government of
applications under section 104 before their submittal to that
court.
``(2) Scope of system.--The document management system
proposed in paragraph (1) shall--
``(A) permit and facilitate the prompt submittal of
applications and all other matters, including
electronic filings, to the court established under
section 103(b) under section 104 or 105(g)(5); and
``(B) permit and facilitate the prompt transmittal
of rulings of that court to personnel submitting
applications described in paragraph (1).''.
(i) Amendments to Fisa Title I Relating to Weapons of Mass
Destruction.--
(1) Section 101 of FISA, as amended by subsection (b) of
this section, is further amended--
(A) in subsection (b)(1)--
(i) by striking ``or'' at the end of
subparagraph (D);
(ii) by redesignating subparagraph (E) as
subparagraph (F); and
(iii) by inserting after subparagraph (D)
the following new subparagraph (E):
``(E) engages in the development or proliferation
of weapons of mass destruction, or activities in
preparation therefor; or;'';
(B) in subsection (b)(2)(C), by striking ``sabotage
or international terrorism'' and inserting ``sabotage,
international terrorism, or the development or
proliferation of weapons of mass destruction''; and
(C) by inserting after subsection (k) the following
new subsection (l):
``(l) `Weapon of mass destruction' means--
``(1) any destructive device (as that term is defined in
section 921 of title 18, United States Code) that is intended
or has the capability, to cause death or serious bodily injury
to a significant number of people;
``(2) any weapon that is designed or intended to cause
death or serious bodily injury through the release,
dissemination, or impact of toxic or poisonous chemicals, or
their precursors;
``(3) any weapon involving a biological agent, toxin, or
vector (as those terms are defined in section 178 of title 18,
United States Code); or
``(4) any weapon that is designed to release radiation or
radioactivity at a level dangerous to human life.''.
(2) Sections 101(e)(1)(B), 106(k)(1)(B), and 305(k)(1)(B)
of FISA are each amended by striking ``sabotage or
international terrorism'' and inserting ``sabotage,
international terrorism, or the development or proliferation of
weapons of mass destruction''.
(j) Conforming Amendments to Titles I and III of Fisa to
Accommodate International Movements of Targets.--
(1) Section 105(e) of FISA is amended by adding at the end
the following new paragraph:
``(4) An order issued under this section shall remain in force
during the authorized period of surveillance notwithstanding the
absence of the target from the United States, unless the Government
files a motion to extinguish the order and the court grants the
motion.''.
(2) Section 304(d) of FISA is amended by adding at the end
the following new paragraph:
``(4) An order issued under this section shall remain in force
during the authorized period of physical search notwithstanding the
absence of the target from the United States, unless the Government
files a motion to extinguish the order and the court grants the
motion.''.
SEC. 10. CONFORMING AMENDMENT TO TABLE OF CONTENTS.
The table of contents for the Foreign Intelligence Surveillance Act
of 1978 is amended--
(1) by striking the item relating to section 102 and
inserting the following new item:
``Sec. 102. Electronic surveillance authorization without court order;
certification by attorney general; reports
to congressional committees; transmittal
under seal; duties and compensation of
communication common carrier; applications;
jurisdiction of court.'';
(2) by striking the items relating to sections 111, 309,
and 404; and
(3) by striking the items related to title VII and section
701 and inserting the following:
``TITLE VII--ELECTRONIC SURVEILLANCE PROGRAMS
``Sec. 701. Definitions.
``Sec. 702. Foreign intelligence surveillance court jurisdiction to
review electronic surveillance programs.
``Sec. 703. Applications for approval of electronic surveillance
programs.
``Sec. 704. Approval of electronic surveillance programs.
``Sec. 705. Congressional oversight.
``TITLE VIII--EFFECTIVE DATE
``Sec. 801. Effective date.''.
<all>
Introduced in Senate
Introduced in the Senate. Read the first time. pursuant to the order of September 21, 2006, as modified on September 22, 2006. Placed on Senate Legislative Calendar under Read the First Time. (text of measure as introduced: CR S10044-10050)
Read the second time. Placed on Senate Legislative Calendar under General Orders. Calendar No. 635.
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