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Mr. COHEN (for himself and Mr. Boren) proposed an amendment to the bill S. 4, supra; as follows:
At the end of the bill, insert the following new title:
SECTION 01. SHORT TITLE.
This Act may be cited as the `Counterintelligence Improvements Act of 1991'.
SEC. 02. AMENDMENT TO THE NATIONAL SECURITY ACT OF 1947.
The National Security Act of 1947 (50 U.S.C. 401 et seq.) is amended by inserting at the end thereof the following new title:
(1) who have been granted access to such information pursuant to this title;
(2) who are citizens of the United States who require routine access to such information for the performance of official governmental functions; and
(3) who have been determined to be trustworthy based upon a background investigation and appropriate reinvestigations and have otherwise satisfied the requirements of section 802, below.
(c) Access to Top Secret information by persons other than those identified in subsections (a) and (b) shall be permitted only in accordance with the regulations issued by the President pursuant to section 802 below.
(A) no employee of the United States Government shall be given access to Top Secret information owned, originated or possessed by United States, after the effective date of this title, by any department, agency, or entity of the United States Government unles such person has been subject to an appropriate background investigation and has--
`(1) provided consent to the investigative agency responsible for conducting the security investigation of such person, during the initial background investigation and for such times as access to such information is maintained, and for 5 years thereafter, permitting access to--
(a) financial records concerning the subject pursuant to section 1104 of the Right to Financial Privacy Act of 1978;
`(b) consumer reports concerning the subject pursuant to section 1681b of the Consumer Credit Protection Act; and
`(c) records maintained by commercial entities within the United States pertaining to any travel by the subject outside the United States: Provided, That--
`(i) no information may be requested by an authorized investigative agency pursuant to this section for any purpose other than making a security determination;
`(ii) where the person concerned no longer has access to Top Secret information, no information may be requested by an authorized investigative agency pursuant to this section unless such agency has reasonable grounds to believe, based upon specific and articulable facts available to it, that such person may pose a threat to the continued security of the information to which he or she had previously had access; and
`(iii) any information obtained by an authorized investigative agency pursuant to this section shall not be disseminated to any other department, agency, or entity for any purpose other than for making a security determination, or for foreign counterintelligence or law enforcement purposes;
`(2) agreed, during the period of his or her access, to report to the department, agency, or entity granting such access in accordance with applicable regulations, any travel to foreign countries which has not been authorized as part of the subject's official duties;
`(3) agreed to report to the Federal Bureau of Investigation, or to appropriate investigative authorities of the department, agency, or entity concerned, any unauthorized contacts with persons known to be foreign nationals or persons representing foreign nationals, where an effort to acquire classified information is made by the foreign national, or where such contacts appear intended for this purpose. For purposes of this subsection, the term `unauthorized contacts' does not include contacts made within the context of an authorized diplomatic relationship. Failure by the employee to comply with any of the requirements of this subsection shall constitute grounds for denial or termination of access to the Top Secret information concerned.
`(B) all employees granted access to Top Secret information pursuant to this subsection shall also be subject to--
`(1) additional background investigations by appropriate governmental authorities during the period of access at no less frequent interval than every 5 years, except that any failure to satisfy this requirement that is not solely attributable to the subject of the investigation shall not result in a loss or denial of access; and
`(2) investigation by appropriate governmental authority at any time during the period of access to ascertain whether such persons continue to meet the requirements for access.
`(C) access to Top Secret information by categories of persons who do not meet the requirements of subsections (A) and (B) of this section may be permitted only where the President, or officials designated by
the President for this purpose, determine that such access is essential to protect or further the national security interests of the United States.
`(D) a single office within the Executive branch shall be designated to monitor the implementation and operation of this title within the Executive branch. This office shall submit an annual report to the President and appropriate committees of the Congress, describing the operation of this title and recommending needed improvements. A copy of the regulations implementing this title shall be provided to the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives thirty days prior to their effective date.
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`(a) the term `national security' refers to the national defense and foreign relations of the United States;
`(b) the phrases `information classified in the interest of national security' or `classified information' means any information originated by or on behalf of the United States Government, the unauthorized disclosure of which would cause damage to the national security, which has been marked and is controlled pursuant to the Executive Order 12356 of April 2, 1982, or succesor orders, or the Atomic Energy Act of 1954;
`(c) the term `Top Secret information' means information classified in the interests of national security, the unauthorized disclosure of which would cause exceptionally grave damage to the national security;
`(d) the term `employee' includes any person who receives a salary or compensation of any kind from the United States Government, is a contractor of the United States Government, is an unpaid consultant of the United States Government, or otherwise acts for or on behalf of the United States Government, but does not include the President or Vice President of the United States, Members of the Congress of the United States, Justices of the Supreme Court or judges of other federal courts established pursuant to Article III of the Constitution; and
`(e) the term `authorized investigative agency' means an agency authorized by law or regulation to conduct investigations of persons who are proposed for access to Top Secret information to ascertain whether such persons satisfy the criteria for obtaining and retaining access to such information.
SEC. 03. PROTECTION OF CRYPTOGRAPHIC INFORMATION.
The National Security Act of 1947 (50 U.S.C. 401 et seq.), as amended by section 02, is further amended by inserting at the end the following new title:
`(A) meet the requirements applicable to persons having access to Top Secret information, as defined in subsection 804(c) of this Act, [as added by Section 02 of this Act]; and
`(B) be subject to periodic polygraph examinations conducted by appropriate governmental authorities, limited in scope to questions of a counterintelligence nature, during the period of access.
`(2) Failure to submit to an examination required under paragraph (1) shall be grounds for removal from access to cryptographic information or spaces.
`(3) No person shall be removed from access to cryptographic information or spaces based solely upon the interpretation of the results produced by a polygraph instrument, measuring physiological resources, unless, after further investigation, the head of the department or agency concerned determines the risk to the national security in permitting such access to be so potentially grave that access must nonetheless be denied.
`(b) Definitions.--For purposes of this section--
`(1) the term `classified cryptographic information' means any information classified by the United States Government pursuant to law or Executive order concerning the details of (A) the nature, preparation, or use of any code, cipher, or cryptographic system of the United States; or (B) the design, construction, use, maintenance, or repair of any cryptographic equipment; Provided, however, That the term does not include information concerning the use of cryptographic systems or equipment required for personal or office use;
`(2) the phrase `custodian of classified cryptographic key' means positions that require access to classified cryptographic key beyond that required to use or operate cryptographic equipment for personal or office use, future editions of classified cryptographic key, or classified cryptographic key used for multiple devices;
`(3) the term `classified cryptographic key' means any information (usually a sequence of random binary digits), in any form, classified by the United States Government pursuant to law or Executive order that is used to set up and periodically change the operations performed by any cryptographic equipment;
`(4) the term `cryptographic equipment' means any device, apparatus or appliance used, or prepared, or planned for use by the United States for the purpose of authenticating communications or disguising or concealing the contents, significance, or meanings of communications;
`(5) the term `employee' includes any person who receives a salary or compensation of any kind from a department or agency of the Executive branch, or is a contractor or unpaid consultant of such department or agency;
`(6) the term `head of a department or agency' refers to the highest official who exercises supervisory control over the employee concerned, and does not include any intermediate supervisory officials who may otherwise qualify as heads of agencies within departments; and
`(7) the phrase `questions of a counterintelligence nature' means questions specified to the subject in advance of a polygraph examination solely to ascertain whether the subject is engaged in, or planning, espionage against the United States on behalf of a foreign government or knows persons who are so engaged.
`Sec. 902. Implementing Regulations.--The President shall, within 180 days of the date of enactment of this title, promulgate regulations to implement the provisions of this title. The President shall provide copies of such regulations to the Select Committee on Intelligence of the Senate
and the Permanent Select Committee on Intelligence of the House of Representatives.'.
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SEC. 04. AMENDMENT TO RIGHT TO FINANCIAL PRIVACY ACT.
Section 1104 of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3404) is amended by adding at the end thereof the following new subsection:
`(d)(1) Notwithstanding the provisions of subsection (a), a customer who is the subject of a personnel security investigation conducted by an authorized investigative agency of the U.S. Government as a condition of being granted or maintaining access to Top Secret information, as defined by section 804(c) of the National Security Act of 1947 (as added by section 02 of this Act), may authorize nonrevokable disclosure of all financial records maintained by financial institutions for the period of the customer's access to such information and for up to 5 years after access to such information has been terminated, by the investigative agency responsible for the conduct of such investigation, for an authorized security purpose.
`(2) Such authority shall be contained in a signed and dated statement of the customer which identifies the financial records which are authorized to be disclosed. Such statement may also authorize the disclosure of financial records of accounts opened during the period covered by the consent agreement which are not identifiable at the time such consent is provided. A copy of such statement shall be provided by the investigative agency concerned to the financial institution from which disclosure is sought, together with the certification required pursuant to section 1103(b) (12 U.S.C. 3403(b)).
`(3) The rights of the customer established by subsection (c), above, shall pertain to any disclosures made pursuant to this subsection.
`(4) On an annual basis, the office designated by President pursuant to section 802(D) of the National Security Act of 1947 (as added by section 02 of this Act), shall fully inform the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate concerning the number of requests for financial records made pursuant to this section.'.
SEC. 05. NEW CRIMINAL OFFENSE FOR THE POSSESSION OF ESPIONAGE DEVICES.
(a) In General.--Chapter 37 of title 18, United States Code, is amended by inserting at the end thereof the following new section:
`799a. Possession of espionage devices.'.
SEC. 06. NEW OFFENSE FOR SALE OR TRANSFER TO FOREIGN GOVERNMENTS DOCUMENTS AND OTHER MATERIALS DESIGNATED AS TOP SECRET.
(a) In General.--Chapter 37 of title 18, United States Code, is amended by inserting after section 794 the following new section:
`(A) any document, writing, code book, sketch, photograph, map, model, instrument, equipment, electronic storage media, or other material, or portion thereof, knowing that it is marked or otherwise
designated in any manner, pursuant to applicable law and Executive order, as `Top Secret', or
`(B) any such document, writing, code book, sketch, photograph, map, model, instrument, equipment, electronic storage media, or other material, or portion thereof, which has had such marking or designation removed without authority and the person making the sale or transfer is aware of such removal.
`(2) Paragraph (1) shall not be deemed to be violated by a person who makes such transfer pursuant to applicable law or executive branch authority.
`(b) In any prosecution under this section, whether or not the information or material in question has been properly marked or designated as `TOP SECRET' pursuant to applicable law or Executive order shall not be an element of the offense: Provided, however, That it shall be a defense to any prosecution under this section that the information or document in question has been officially released to the public by an authorized representative of the United States prior to the sale or transfer in question.
`(c) Violation of this section shall be punishable by imprisonment for a maximum of 15 years.'.
(b) Amendments to Table of Sections: The table of sections of chapter 37 of title 18, United States Code, is amended by inserting after the item relating to section 794 the following new item:
`794a. Sale or transfer of documents or materials marked as `Top Secret'.'
SEC. 07. LESSER CRIMINAL OFFENSE FOR THE REMOVAL OF TOP SECRET DOCUMENTS BY GOVERNMENT EMPLOYEES AND CONTRACTORS.
(A) In General: Chapter 93 of title 18, United States Code, is amended by inserting at the end thereof the following new section:
`Sec. 1924. Whoever, being an officer, employee, contractor or consultant of the United States, and having, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials classified at the level of `Top Secret' pursuant to applicable law or Executive order, knowingly removes such documents or materials without authority and retains such documents or materials at an unauthorized location shall be fined not more than $1,000, or imprisoned for not more than one year, or both.'.
(b) Amendment to Table of Sections: The table of sections for chapter 93 of title 18, United States Code, is amended by adding at the end thereof the following new item:
`1924. Removal of `Top Secret' documents or material.'
SEC. 08. JURISDICTION OF UNITED STATES COURTS TO TRY CASES INVOLVING ESPIONAGE OUTSIDE THE UNITED STATES.
(a) Chapter 211 of title 18 of the United States Code is amended by adding a new section 3239 as follows:
`3239. Jurisdiction for espionage and related offenses
`The trial for any offense involving a violation of--
`(a) section 793, 794, 794a (as added by section 06 of this Act), 798, 798a (as added by section 05 of this Act), or subsection 1030(a)(1) of this title;
`(b) section 601 of the National Security Act of 1947 as added by the Intelligence Identities Protection Act of 1982 (50 U.S.C. 421); or
`(c) subsections 4(b) or 4(c) of the Subversive Activities Control Act of 1950 (U.S.C. 783(b) or 783(c));
begun or committed upon the high seas or elsewhere out of the jurisdiction of any particular state or district, may be prosecuted in the District of Columbia, or in the Eastern District of Virginia, or in any other district authorized by law.'.
(b) The chapter analysis for chapter 211 of title 18 of the United States Code is amended by striking out
`[3239. Repealed.]'
and inserting in lieu thereof:
`3239. Jurisdiction for espionage and related offenses.'
SEC. 9. EXPANSION OF EXISTING STATUTE REGARDING FORFEITURE OF COLLATERAL PROFITS OF CRIME TO ADDITIONAL ESPIONAGE OFFENSES.
Section 3681 of title 18, United States Code, is amended--
(1) in subsection (a), by striking out `section 794 of this title' and inserting in lieu thereof `sections 793, 794, 794a (as added by section 06 of this Act), 798, and 799a (as added by section 05 of this Act) of this title and section 783 of title 50, United States Code'; and
(2) by adding at the end thereof the following new subsection:
`(e) For purposes of this section, convictions pursuant to military courts-martial for offenses comparable to violations of sections 793, 794, 794a (as added by section 06 of this Act), 798, and 799a (as added by section 05 of this Act) of this title, or a violation of section 783 of title 50, or convictions by foreign courts for offenses which, if perpetrated within the United States, would constitute offenses under section 793, 794, 794a (as added by section 06 of this Act), 798, and 799a (as added by section 05 of this Act) of this title, or a violation of section 783 of title 50 shall be considered as convictions for which actions may be ordered pursuant to this section.'.
SEC. 10. DENIAL OF ANNUITIES OR RETIRED PAY TO PERSONS CONVICTED OF ESPIONAGE IN FOREIGN COURTS INVOLVING UNITED STATES INFORMATION.
Section 8312 of title 5, United States Code, is amended by adding at the end thereof the following new subsection:
`(d) For purposes of subsections (b)(1) and (c)(1), an offense within the meaning of such subsections is established if the Attorney General certifies to the agency employing or formerly employing the person concerned--
`(i) than an individual subject to this chapter has been convicted by an impartial court of appropriate jurisdiction within a foreign country in circumstances in which the conduct violates the provisions of law enumerated in subsections (b)(1) and (c)(1), or would violate such provisions, had such conduct taken place within the United States, and that such conviction is not being appealed or that final action has been taken on such appeal;
`(2) that such conviction was obtained in accordance with procedures that provided the defendant due process rights comparable to such rights provided by the United States Constitution, and such conviction was based upon evidence which would have been admissible in the courts of the United States; and
`(3) that such conviction occurred after the date of enactment of this subsection:
Provided, That any certification made pursuant to this paragraph shall be subject to review by the United States Court of Claims based upon the application of the individual concerned, or his or her attorney, alleging that any of the conditions set forth in subsections (1), (2), (3), herein, as certified by the Attorney General, have not been satisfied in his or her particular circumstances. Should the court determine that any of these conditions has not been satisfied in such case, the court shall order any annuity or retirement benefit to which the person concened is entitled to be restored and shall order that any payments which may have been previously denied or withheld to be paid by the department or agency concerned.
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SEC. 11. AUTHORIZING THE FBI TO OBTAIN CONSUMER REPORTS ON PERSONS BELIEVED TO BE AGENTS OF FOREIGN POWERS.
Section 608 of the Consumer Credit Protection Act (15 U.S.C. 1681f) is amended--
(1) by inserting `(a)' before `Notwithstanding'; and
(2) by inserting at the end thereof the following new subsections:
`(b) Notwithstanding the provisions of section 604, a consumer reporting agency shall, upon request, furnish a consumer report to the Federal Bureau of Investigation, if the Director of the Federal Bureau of Investigation, or the Director's designee, certifies in writing to the consumer reporting agency that such records are sought in connection with an authorized foreign counterintelligence investigation and that there are specific and articulable facts giving reason to believe that the person to whom the requested consumer report relates is an agent of a foreign power, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).
`(c) Notwithstanding the provisions of section 604, a consumer reporting agency shall furnish identifying information respecting any consumer, limited to name, address, former addresses, places of employment, or former places of employment, to a representative of the Federal Bureau of Investigation when presented with a written request signed by the Director of the Federal Bureau of Investigation, or the Director's designee, stating that the information is necessary to the conduct of an authorized foreign counter-intelligence investigation.
`(d) No consumer reporting agency, or officer, employee, or agent of such institution shall disclose to any person that the Federal Bureau of Investigation has sought or obtained a consumer report or identifying information respecting any consumer under this section.
`(e) On an annual basis the Director of the Federal Bureau of Investigation shall fully inform the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate concerning all requests made under subsections (b) and (c).'.
SEC. 12. TO PROVIDE FOR REWARDS FOR INFORMATION CONCERNING ESPIONAGE.
(a) In General: Chapter 204 of title 18, United States Code, is amended--
(1) by inserting at the end of the chapter heading `AND ESPIONAGE';
(2) in section 3071, by inserting `(a)' immediately before `With respect to';
(3) in section 3071, adding at the end thereof the following new subsection:
`(b) With respect to acts of espionage involving or directed at United States information classified in the interest of national security, the Attorney General may reward any individual who furnishes information--
`(1) leading to the arrest or conviction, in any country, of any individual or individuals for commission of an act of espionage against the United States;
`(2) leading to the arrest or conviction, in any country, of any individual or individuals for conspiring or attempting to commit an act of espionage against the United States; or
`(3) leading to the prevention or frustration of an act of espionage against the United States.'.
(b) Amount of Rewards: Section 3072 of title 18, United States Code, is amended by striking out `$500,000' and inserting in lieu thereof `$1,000,000'.
(c) Definitions: Section 3077 of title 18, United States Code, is amended by inserting at the end thereof the following new paragraphs:
`(8) `act of espionage' means an activity that is a violation of sections 794, 794a (as added by section 06 of this Act), 798, or 799a (as added by section 05 of this Act) of this title or section 783 of title 50, United States Code.
`(9) `United States information classified in the interests of national security' means information originated, owned, or possessed by the United States Government concerning the national defense and foreign relations of the United States that has been determined pursuant to law or Executive order to require protection against unauthorized disclosure and that has been so designated.'.
SEC. 13. TO PROVIDE A COURT ORDER PROCESS FOR PHYSICAL SEARCHES UNDERTAKEN FOR FOREIGN INTELLIGENCE PURPOSES.
The Foreign Intelligence Surveillance Act of 1978 is amended by inserting at the end thereof the following new title:
`Sec. 401. (a) Applications for a court order under this title are authorized if the President has, in writing, empowered the Attorney General to approve applications to the Foreign Intelligence Surveillance Court, and a judge of that court to whom application is made may, notwithstanding any other law, grant an order, in conformity with section 403, approving a physical search in the United States, for the purpose of collecting foreign intelligence information of--
`(1) the property, information or material of a foreign power as defined in section 101(a) (1), (2), and (3) of this Act, or
`(2) the premises, property, information or material of an agent of a foreign power or a foreign power as defined in section 101 (a)(4), (5), and (6) of this Act.
`(b) The Foreign Intelligence Surveillance Court shall have jurisdiction to hear applications for and grant orders approving a physical search for the purpose of obtaining foreign intelligence information anywhere within the United States under the procedures set forth in this title, except that no judge shall hear the same application which has been denied previously by another judge. If any judge denies an application for an order authorizing a physical search under this title, such judge shall provide immediately for the record a written statement of each reason for his decision and, on motion of the United States, the record shall be transmitted, under seal, to the Court of Review.
`(c) The Court of Review shall have jurisdiction to review the denial of any application made under this title. If such court determines that the application was properly denied, the Court shall immediately provide for the record a written statement of each reason for its decision and, on petition of the United States for a writ of certiorari, the record shall be transmitted under seal to the Supreme Court, which shall have jurisdiction to review such decision.
`(d) Judicial proceedings under this title shall be concluded as expeditiously as possible. The record of proceedings under this title, including applications made and orders granted, 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 Central Intelligence.
`Sec. 402. (a) Each application for an order approving a physical search under this title shall be made by a Federal officer in writing upon oath or affirmation to a judge of the Foreign Intelligence Surveillance Court. Each application shall require the approval of the Attorney General based upon the Attorney General's finding that it satisfied the criteria and requirements for such application as set forth in this title. It shall include--
`(1) the identity, if known, or a description of the target of the search;
`(2) the authority conferred on the Attorney General by the President of the United States and the approval of the Attorney General to make the application;
`(3) the identity of the Federal officer making the application and a detailed description of the premises or property to be searched and of the information, material, or property to be seized, reproduced, or altered;
`(4) a statement of the facts and circumstances relied upon by the applicant to justify the applicant's belief that--
`(A) the target of the physical search is a foreign power or an agent of a foreign power;
`(B) the premises or property to be searched contains foreign intelligence information;
`(C) the premises or property to be searched is owned, used, possessed by, or is in transit to or from a foreign power or an agent of a foreign power;
`(5) a statement of the proposed minimization procedures;
`(6) a statement of the manner in which the physical search is to be conducted;
`(7) a statement of the facts concerning all previous applications that have been made to any judge under this title involving any of the persons, premises, or property specified in the application, and the action taken on each previous applications;
`(8) a statement of the facts concerning any search described in section 406(b), below, which involves any of the persons, premises, or property specified in the application; and
`(9) a statement that the purpose of the physical search is to obtain foreign intelligence information.
`(b) The judge may require the applicant to furnish such other information as may be necessary to make the determinations required by section 403.
`Sec. 403. (a) Upon an application made pursuant to section 402, the judge shall enter an ex parte order as requested or as modified approving the physical search if the judge finds that--
`(1) the President has authorized the Attorney General to approve applications for physical searches for foreign intelligence purposes;
`(2) the application has been made by a Federal officer and approved by the Attorney General;
`(3) on the basis of the facts submitted by the applicant there is probable cause to believe that--
`(A) the target of the physical search is a foreign power or an agent of a foreign power: Provided, That no United States person may be considered an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States;
`(B) the premises or property to be searched are owned, used, possessed by, or is in transit to or from an agent of a foreign power or a foreign power; and
`(C) physical search of such premises or property can reasonably be expected to yield
foreign intelligence information which cannot reasonably be obtained by normal investigative means; and
`(4) the proposed minimization procedures meet the definition of minimization contained in this title; and
`(5) the application which has been filed contains all statements required by section 402.
`(b) An order approving a physical search under this section shall--
`(1) specify--
`(A) the Federal officer or officers authorized to conduct the physical search and the identity, if known, or a description of the target of the physical search;
`(B) the premises or property to be searched and the information, material, or property to be seized, altered, or reproduced;
`(C) the type of foreign intelligence information sought to be acquired; and
`(D) a statement of the manner in which the physical search is to be conducted and, whenever more than one physical search is authorized under the order, the authorized scope of each search and what minimization procedures shall apply to the information acquired by each search;
`(2) direct--
`(A) that the minimization procedures be followed;
`(B) that, upon the request of the applicant, a specified landlord, custodian, or other specified person furnish the applicant forthwith all information, facilities, or assistance necessary to accomplish the physical search in such a manner as will protect its secrecy and produce a minimum of interference with the activities of the landlord, custodian, or other person; and that such landlord, custodian or other person maintain under security procedures approved by the Attorney General and the Director of Central Intelligence any records concerning the search or the aid furnished that such person wishes to retain;
`(C) that the physical search be undertaken within 30 days of the date of the order, or, if the physical search is of the property, information or material of a foreign power as defined in section 101(a)(1), (2), or (3) of this Act, that such search be undertaken within one year of the order; and
`(D) that the federal officer conducting the physical search promptly report to the court the circumstances and results of the physical search.
`(c) At any time after a physical search has been carried out, the judge to whom the return has been made may assess compliance with the minimization procedures by reviewing the circumstances under which information concerning United States persons was acquired, retained, or disseminated.
`(d) Application made and orders granted under this title shall be retained for a period of at least ten years from the date of the application.
`(e) Not more than 60 days after a physical search of the residence of a United States person authorized by this title, or such a search in the circumstances described in section 406(b), has been conducted, the Attorney General shall provide the United States person with an inventory which shall include--
`(1) existence or not of a court order authorizing the physical search and the date of the order;
`(2) the date of the physical search and an identification of the premises or property searched; and
`(3) a list of any information, material, or property seized, altered, or reproduced.
`(f) On an ex parte showing of good cause by the Attorney General to a judge of the Foreign Intelligence Surveillance Court the provision of the inventory required by subsection (e) may be postponed for a period not to exceed 90 days. At the end of such period the provision of the inventory may, upon a similar showing, be postponed indefinitely. The denial of a request for such postponements may be reviewed as provided in section 401.
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`Sec. 404. (a) Information acquired from a physical search conducted pursuant to this title concerning any United States person may be used and disclosed by Federal officers and employees without the consent of the United States person only in accordance with the minimization procedures required by this title. No information acquired from a physical search pursuant to this title may be used or disclosed by Federal officers or employees except for lawful purposes.
`(b) No information acquired pursuant to this title 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.
`(c) Whenever the United States 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 a physical search of the premises or property of that aggrieved person pursuant to the authority of this title, the United States shall, prior to the trial, hearing, or the 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 United States intends to so disclose or so use such information.
`(d) Whenever any State or political subdivision thereof intends to enter into evidence or otherwise use of 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 a physical search of the premises or property of that aggrieved person pursuant to the authority of this title, 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.
`(e) Any person against whom evidence obtained or derived from a physical search 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 search on the grounds that--
`(1) the information was unlawfully acquired; or
`(2) the physical search 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.
`(f) Whenever a court of other authority is notified pursuant to subsection (c) or (d), or whenever a motion is made pursuant to subsection (e), or whenever any 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 applications or orders or other materials relating to a physical search authorized by this title or to discover, obtain, or suppress evidence or information obtained
or derived from a physical search authorized by this title, 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 application, order, and such other materials relating to the physical search as may be necessary to determine whether the physical search of the aggrieved person 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 application, order, or other materials relating to the physical search only where such disclosure is necessary to make an accurate determination of the legality of the physical search.
`(g) If the United States district court pursuant to subsection (f) determines that the physical search was not lawfully authorized or conducted, it shall, in accordance with the requirements of law, suppress the evidence which was unlawfully obtained or derived from the physical search of the aggrieved person or otherwise grant the motion of the aggrieved person. If the court determines that the physical search was lawfully authorized or conducted, it shall deny the motion of the aggrieved person except to the extent that due process requires discovery or disclosure.
`(h) Orders granting motions or requests under subsection (g), decisions under this section that a physical search was not lawfully authorized or conducted, and orders of the United States district court requiring review or granting disclosure of applications, orders or other materials relating to the physical search shall be final orders and binding upon all courts of the United States and the several States except a United States court of appeals and the Supreme Court.
`(i) The provisions of this section regarding the use or disclosure of information obtained or derived from a physical search shall apply to information obtained or derived from a search conducted without a court order to obtain foreign intelligence information which is not a physical search as defined in this title solely because the existence of exigent circumstances would require a warrant for law enforcement purposes.
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`Sec. 405. (a) On a semiannual basis the Attorney General shall fully inform the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence concerning all physical searches conducted pursuant to this title, and all other searches, except those reported under section 108 of this Act, conducted in the United States for foreign intelligence purposes. On an annual basis the Attorney General shall also provide to those committees a report setting forth with respect to the preceding calendar year--
`(1) the total number of applications made for orders approving physical searches under this title; and
`(2) the total number of such orders either granted, modified, or denied.
`(b) Whenever a search is conducted without a court order to obtain foreign intelligence information which is not a physical search as defined in this title solely because the existence of exigent circumstances would not require a warrant for law enforcement purposes, a full report of such search, including a description of the exigent circumstances, shall be maintained by the Attorney General. Each such report shall be transmitted to the Foreign Intelligence Surveillance Court promptly after the search is conducted.
`Sec. 406. (a) The procedures contained in this title shall be the exclusive means by which a physical search, as defined in this title, may be conducted in the United States for foreign intelligence purposes, and an order issued under this title authorizing a physical search shall constitute a search warrant authorized by law for purposes of any other law.
`(b) Searches conducted in the United States to collect foreign intelligence information, other than physical searches
as defined in this title and electronic surveillance as defined in this Act, and physical searches conducted in the United States without a court order to collect foreign intelligence information may be conducted only pursuant to regulations issued by the Attorney General. Such regulations, and any changes thereto, shall be provided to the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives at least 14 days prior to the taking effect. Any regulations issued by the Attorney General regarding such searches which were in effect as of June 1, 1990, shall be deemed to be regulations required by this subsection.
`Sec. 407. (a) Offense.--A person is guilty of an offense if he intentionally--
`(1) under color of law for the purpose of obtaining foreign intelligence information, engages in physical search within the United States except as authorized by statute; or
`(2) discloses or uses information obtained under color of law by physical search within the United States, knowing or having reason to know that the information was obtained through physical search not authorized by statute, for the purposes of obtaining intelligence information.
`(b) Defense.--It is a defense to a prosecution under subsection (a) that the defendant was a law enforcement or investigative officer engaged in the course of his official duties and the physical search was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction.
`(c) Penalty.--An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both.
`(d) Jurisdiction.--There is Federal jurisdiction over an offense under this section if the person committing the offense was an officer or employee of the United States at the time the offense was committed.
`Sec. 408. Civil Action.--An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 101 (a) or (b)(1)(A), respectively, of this Act, whose premises, property information, or material has been subjected to a physical search within the United States or about whom information obtained by such a physical search has been disclosed or used in violation of section 407 shall have a cause of action against any person who committed such violation and shall be entitled to recover--
`(a) actual damages;
`(b) punitive damages; and
`(c) reasonable attorney's fees and other investigative and litigation costs reasonably incurred.
`Sec. 409. As used in this title:
`(a) The terms `foreign power,' `agent of a foreign power,' `international terrorism,' `sabotage,' `foreign intelligence information,' `Attorney General,' `United States person,' `United States',' `person,' and `State' shall have the same meaning as in Section 101 of this Act.
`(b) `Physical search' means any physical intrusion into premises or property (including examination of the interior of property by technical means) or any seizure, reproduction by technical means) or any seizure, reproduction or alteration of information, material or property, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, but does not include `electronic surveillance' as defined in subsection 101(f) of this Act.
`(c) `Minimization procedures' with respect to physical search, means--
`(1) specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purposes and technique of the particular physical search, to minimize the acquisition and retention, and prohibit the dissemination, of non-publicly available information concerning unconsenting United States persons consistent with the need of the United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;
`(2) procedures that require that non-publicly available information, which is not foreign intelligence information, as defined in subsection 101(e)(1) of this Act, shall not be disseminated in a manner that identifies any United States person, without such person's consent, unless such person's identity is necessary to understand such foreign intelligence information or assess its importance; and
`(3) notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes.'
`(d) `Aggrieved person' means a person whose premises, property, information, or material is the target of physical search or any other person whose premises, property, information, or material was subject to physical search.
`(e) `Foreign Intelligence Surveillance Court' means the court established by section 103(a) of this Act.
`(f) `Court of Review' means the court established by section 103(b) of this Act.
`Sec. 410. The provisions of this title shall become effective 90 days after the date of enactment of this title, except that any physical search approved by the Attorney General to gather foreign intelligence information shall not be deemed unlawful for failure to follow the procedures of this title, if that search is conducted within 180 days following the date of enactment of this title pursuant to regulations issued by the Attorney General, which are in the possession of the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives prior to the date of enactment.'.
END