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109th Congress                                            Rept. 109-680
                        HOUSE OF REPRESENTATIVES
 2d Session                                                      Part 1

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               ELECTRONIC SURVEILLANCE MODERNIZATION ACT

                                _______


               September 25, 2006.--Ordered to be printed

                                _______


  Mr. Hoekstra, from the Permanent Select Committee on Intelligence,
                        submitted the following

                              R E P O R T

                             together with

                     ADDITIONAL AND MINORITY VIEWS

                        [To accompany H.R. 5825]

      [Including cost estimate of the Congressional Budget Office]

  The Permanent Select Committee on Intelligence, to whom was
referred the bill (H.R. 5825) to update the Foreign
Intelligence Surveillance Act of 1978, having considered the
same, report favorably thereon with an amendment and recommend
that the bill as amended do pass.
  The amendment is as follows:
  Strike all after the enacting clause and insert the
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Electronic Surveillance Modernization
Act''.

SEC. 2. FISA DEFINITIONS.

  (a) Agent of a Foreign Power.--Subsection (b)(1) of section 101 of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801) is
amended--
          (1) in subparagraph (B), by striking ``; or'' and inserting
        ``;''; and
          (2) by adding at the end the following new subparagraph:
                  ``(D) possesses or is reasonably expected to transmit
                or receive foreign intelligence information while in
                the United States; or''.
  (b) Electronic Surveillance.--Subsection (f) of such section is
amended to read as follows:
  ``(f) `Electronic surveillance' means--
          ``(1) the installation or use of a surveillance device for
        the intentional collection of information relating to a person
        who is reasonably believed to be in the United States by
        intentionally targeting that person, under circumstances in
        which the 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, without the consent of a party to the
        communication, under circumstances in which a person has a
        reasonable expectation of privacy and a warrant would be
        required for law enforcement purposes, if both the sender and
        all intended recipients are located within the United
        States.''.
  (c) Minimization Procedures.--Subsection (h) of such section is
amended--
          (1) in paragraph (2), by striking ``importance;'' and
        inserting ``importance; and'';
          (2) in paragraph (3), by striking ``; and'' and inserting
        ``.''; and
          (3) by striking paragraph (4).
  (d) Wire Communication and Surveillance Device.--Subsection (l) of
such section is amended to read as follows:
  ``(l) `Surveillance device' is a device that allows surveillance by
the Federal Government, but excludes any device that extracts or
analyzes information from data that has already been acquired by the
Federal Government by lawful means.''.
  (e) Physical Search.--Section 301(5) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1821(5)) is amended by striking
``Act, or (B)'' and inserting ``Act, (B) activities described in
section 102(b) of this Act, or (C)''.

SEC. 3. AUTHORIZATION FOR ELECTRONIC SURVEILLANCE FOR FOREIGN
                    INTELLIGENCE PURPOSES.

  Section 102 of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1802) is amended--
          (1) in subsection (a)(1)--
                  (A) in subparagraph (A)--
                          (i) in clause (i), by striking ``transmitted
                        by means of'' and all that follows and
                        inserting ``of a foreign power, as defined in
                        paragraph (1), (2), or (3) of section 101(a),
                        or an agent of a foreign power, as defined in
                        section 101(b)(1); or''; and
                          (ii) in clause (ii), by striking ``or (3);''
                        and inserting ``or (3); and'';
                  (B) by striking subparagraph (B); and
                  (C) by redesignating subparagraph (C) as subparagraph
                (B);
          (2) by striking subsection (a)(4);
          (3) in subsection (b), to read as follows:
  ``(b)(1) The Attorney General may require, by written certification,
any person with authorized access to electronic communications or
equipment used to transmit or store electronic communications to
provide information, facilities, or technical assistance--
          ``(A) necessary to accomplish electronic surveillance
        authorized under subsection (a); or
          ``(B) to an official designated by the President for a period
        of up to one year, provided the Attorney General certifies in
        writing, under oath, that the provision of the information,
        facilities, or technical assistance does not constitute
        electronic surveillance.
  ``(2) The Attorney General may require a person providing
information, facilities, or technical assistance under paragraph (1)
to--
          ``(A) provide the information, facilities, or technical
        assistance in such a manner as will protect the secrecy of the
        provision of such information, facilities, or technical
        assistance and produce a minimum of interference with the
        services that such person is providing the customers of such
        person; and
          ``(B) maintain under security procedures approved by the
        Attorney General and the Director of National Intelligence any
        records concerning such electronic surveillance or the
        information, facilities, or technical assistance provided which
        such person wishes to retain.
  ``(3) The Government shall compensate, at the prevailing rate, a
person for providing information, facilities, or technical assistance
pursuant to paragraph (1).''; and
          (4) by adding at the end the following new subsection:
  ``(c) Notwithstanding any other provision of law, the President may
designate an official who may authorize electronic surveillance of
international radio communications of a diplomat or diplomatic mission
or post of the government of a foreign country in the United States in
accordance with procedures approved by the Attorney General.''.

SEC. 4. APPLICATIONS FOR COURT ORDERS.

  Section 104 of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1804) is amended--
          (1) in subsection (a)--
                  (A) by striking paragraphs (6), (9), and (11);
                  (B) by redesignating paragraphs (7), (8), and (10) as
                paragraphs (6), (7), and (8), respectively;
                  (C) in paragraph (6), as redesignated by subparagraph
                (B)--
                          (i) in the matter preceding subparagraph (A),
                        by striking ``or officials designated'' and all
                        that follows through ``consent of the Senate''
                        and inserting ``designated by the President to
                        authorize electronic surveillance for foreign
                        intelligence purposes'';
                          (ii) in subparagraph (C), by striking
                        ``techniques;'' and inserting ``techniques;
                        and'';
                          (iii) by striking subparagraphs (D) and (E)
                        and inserting the following:
                  ``(D) including a statement of the basis for the
                certification that the information sought is the type
                of foreign intelligence information designated;'';
                  (D) in paragraph (7), as redesignated by subparagraph
                (B)--
                          (i) by striking ``a statement of the means by
                        which the surveillance will be effected and'';
                        and
                          (ii) by adding ``and'' at the end; and
                  (E) in paragraph (8), as redesignated by subparagraph
                (B), by striking ``; and'' and inserting a period;
          (2) by striking subsection (b); and
          (3) by redesignating subsections (c), (d), and (e) as
        subsections (b), (c), and (d), respectively.

SEC. 5. ISSUANCE OF AN ORDER.

  Section 105 of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1805) is amended--
          (1) in subsection (a)--
                  (A) by striking paragraph (1); and
                  (B) by redesignating paragraphs (2), (3), (4), and
                (5) as paragraphs (1), (2), (3), and (4), respectively;
          (2) in subsection (c)(1)--
                  (A) in subparagraph (B), by striking ``known;'' and
                inserting ``known; and'';
                  (B) by striking subparagraphs (C), (D), and (F);
                  (C) by redesignating subparagraph (E) as subparagraph
                (C); and
                  (D) in subparagraph (C), as redesignated by
                subparagraph (C), by striking ``approved; and'' and
                inserting ``approved.'';
          (3) by striking subsection (d);
          (4) by redesignating subsections (e), (f), (g), (h), and (i)
        as subsections (d), (e), (f), (g), and (h), respectively;
          (5) in subsection (d), as redesignated by paragraph (4)--
                  (A) in paragraph (1), by striking ``for the period
                necessary'' and all that follows and insert ``for a
                period not to exceed one year.''; and
                  (B) in paragraph (2), by striking ``original order,
                except that'' and all that follows and inserting
                ``original order for a period not to exceed one
                year.'';
          (6) in subsection (e), as redesignated by paragraph (4), to
        read as follows:
  ``(e) Notwithstanding any other provision of this title, the Attorney
General may authorize the emergency employment of electronic
surveillance if the Attorney General--
          ``(1) determines that 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;
          ``(2) determines that the factual basis for issuance of an
        order under this title to approve such surveillance exists;
          ``(3) informs a judge having jurisdiction under section 103
        at the time of such authorization that the decision has been
        made to employ emergency electronic surveillance; and
          ``(4) makes an application in accordance with this title to a
        judge having jurisdiction under section 103 as soon as
        practicable, but not more than 120 hours after the official
        authorizes such surveillance.
If the Attorney General authorizes such emergency employment of
electronic surveillance, the Attorney General shall require that the
minimization procedures required by this title for the issuance of a
judicial order be followed. 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 120 hours from the
time of authorization by the Attorney General, 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.''; and
          (7) in subsection (h), as redesignated by paragraph (4), by
        striking ``assistance in accordance with a court order'' and
        all that follows and inserting ``assistance--
          ``(1) in accordance with a court order or request for
        emergency assistance under this Act for electronic surveillance
        or physical search; or
          ``(2) in response to a certification by the Attorney General
        or a designee of the Attorney General seeking information,
        facilities, or technical assistance from such person that does
        not constitute electronic surveillance.''.

SEC. 6. USE OF INFORMATION.

  Section 106(i) of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1806(i)) is amended--
          (1) by striking ``radio communication'' and inserting
        ``communication''; and
          (2) by striking ``contents indicates'' and inserting
        ``contents contain significant foreign intelligence information
        or indicate''.

SEC. 7. AUTHORIZATION AFTER AN ARMED ATTACK.

  (a) Electronic Surveillance.--Section 111 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1811) is amended by striking ``for
a period not to exceed'' and all that follows and inserting the
following: ``for a period not to exceed 60 days following an armed
attack against the territory of the United States if the President
submits to the Permanent Select Committee on Intelligence of the House
of Representatives and the Select Committee on Intelligence of the
Senate notification of the authorization under this section.''.
  (b) Physical Search.--Section 309 of such Act (50 U.S.C. 1829) is
amended by striking ``for a period not to exceed'' and all that follows
and inserting the following: ``for a period not to exceed 60 days
following an armed attack against the territory of the United States if
the President submits to the Permanent Select Committee on Intelligence
of the House of Representatives and the Select Committee on
Intelligence of the Senate notification of the authorization under this
section.''.

SEC. 8. AUTHORIZATION OF ELECTRONIC SURVEILLANCE AFTER A TERRORIST
                    ATTACK.

  The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.) is further amended--
          (1) by adding at the end of title I the following new
        section:
  ``authorization following a terrorist attack upon the united states
  ``Sec. 112.  (a) In General.--Notwithstanding any other provision of
law, but subject to the provisions of this section, the President,
acting through the Attorney General, may authorize electronic
surveillance without an order under this title to acquire foreign
intelligence information for a period not to exceed 45 days following a
terrorist attack against the United States if the President submits a
notification to the congressional intelligence committees and a judge
having jurisdiction under section 103 that--
          ``(1) the United States has been the subject of a terrorist
        attack; and
          ``(2) identifies the terrorist organizations or affiliates of
        terrorist organizations believed to be responsible for the
        terrorist attack.
  ``(b) Subsequent Certifications.--At the end of the 45-day period
described in subsection (a), and every 45 days thereafter, the
President may submit a subsequent certification to the congressional
intelligence committees and a judge having jurisdiction under section
103 that the circumstances of the terrorist attack for which the
President submitted a certification under subsection (a) require the
President to continue the authorization of electronic surveillance
under this section for an additional 45 days. The President shall be
authorized to conduct electronic surveillance under this section for an
additional 45 days after each such subsequent certification.
  ``(c) Electronic Surveillance of Individuals.--The President, or an
official designated by the President to authorize electronic
surveillance, may only conduct electronic surveillance of a person
under this section if the President or such official determines that--
          ``(1) there is a reasonable belief that such person is
        communicating with a terrorist organization or an affiliate of
        a terrorist organization that is reasonably believed to be
        responsible for the terrorist attack; and
          ``(2) the information obtained from the electronic
        surveillance may be foreign intelligence information.
  ``(d) Minimization Procedures.--The President may not authorize
electronic surveillance under this section until the Attorney General
approves minimization procedures for electronic surveillance conducted
under this section.
  ``(e) United States Persons.--Notwithstanding subsection (b), the
President may not authorize electronic surveillance of a United States
person under this section without an order under this title for a
period of more than 90 days unless the President, acting through the
Attorney General, submits a certification to the congressional
intelligence committees that--
          ``(1) the continued electronic surveillance of the United
        States person is vital to the national security of the United
        States;
          ``(2) describes the circumstances that have prevented the
        Attorney General from obtaining an order under this title for
        continued surveillance;
          ``(3) describes the reasons for believing the United States
        person is affiliated with or in communication with a terrorist
        organization or affiliate of a terrorist organization that is
        reasonably believed to be responsible for the terrorist attack;
        and
          ``(4) describes the foreign intelligence information derived
        from the electronic surveillance conducted under this section.
  ``(f) Use of Information.--Information obtained pursuant to
electronic surveillance under this subsection may be used to obtain an
order authorizing subsequent electronic surveillance under this title.
  ``(g) Reports.--Not later than 14 days after the date on which the
President submits a certification under subsection (a), and every 30
days thereafter until the President ceases to authorize electronic
surveillance under subsection (a) or (b), the President shall submit to
the congressional intelligence committees a report on the electronic
surveillance conducted under this section, including--
          ``(1) a description of each target of electronic surveillance
        under this section; and
          ``(2) the basis for believing that each target is in
        communication with a terrorist organization or an affiliate of
        a terrorist organization.
  ``(h) Congressional Intelligence Committees Defined.--In this
section, the term `congressional intelligence committees' means the
Permanent Select Committee on Intelligence of the House of
Representatives and the Select Committee on Intelligence of the
Senate.''; and
          (2) in the table of contents in the first section, by
        inserting after the item relating to section 111 the following
        new item:

``Sec. 112. Authorization following a terrorist attack upon the United
States.''.

SEC. 9. AUTHORIZATION OF ELECTRONIC SURVEILLANCE DUE TO IMMINENT
                    THREAT.

  The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.) is further amended--
          (1) by adding at the end of title I the following new
        section:
                 ``authorization due to imminent threat
  ``Sec. 113.  (a) In General.--Notwithstanding any other provision of
law, but subject to the provisions of this section, the President,
acting through the Attorney General, may authorize electronic
surveillance without an order under this title to acquire foreign
intelligence information for a period not to exceed 90 days if the
President submits to the congressional leadership, the congressional
intelligence committees, and the Foreign Intelligence Surveillance
Court a written notification that the President has determined that
there exists an imminent threat of attack likely to cause death,
serious injury, or substantial economic damage to the United States.
Such notification--
          ``(1) shall be submitted as soon as practicable, but in no
        case later than 5 days after the date on which the President
        authorizes electronic surveillance under this section;
          ``(2) shall specify the entity responsible for the threat and
        any affiliates of the entity;
          ``(3) shall state the reason to believe that the threat of
        imminent attack exists;
          ``(4) shall state the reason the President needs broader
        authority to conduct electronic surveillance in the United
        States as a result of the threat of imminent attack;
          ``(5) shall include a description of the foreign intelligence
        information that will be collected and the means that will be
        used to collect such foreign intelligence information; and
          ``(6) may be submitted in classified form.
  ``(b) Subsequent Certifications.--At the end of the 90-day period
described in subsection (a), and every 90 days thereafter, the
President may submit a subsequent written notification to the
congressional leadership, the congressional intelligence committees,
the other relevant committees, and the Foreign Intelligence
Surveillance Court that the circumstances of the threat for which the
President submitted a written notification under subsection (a) require
the President to continue the authorization of electronic surveillance
under this section for an additional 90 days. The President shall be
authorized to conduct electronic surveillance under this section for an
additional 90 days after each such subsequent written notification.
  ``(c) Electronic Surveillance of Individuals.--The President, or an
official designated by the President to authorize electronic
surveillance, may only conduct electronic surveillance of a person
under this section if the President or such official determines that--
          ``(1) there is a reasonable belief that such person is
        communicating with an entity or an affiliate of an entity that
        is reasonably believed to be responsible for imminent threat of
        attack; and
          ``(2) the information obtained from the electronic
        surveillance may be foreign intelligence information.
  ``(d) Minimization Procedures.--The President may not authorize
electronic surveillance under this section until the Attorney General
approves minimization procedures for electronic surveillance conducted
under this section.
  ``(e) United States Persons.--Notwithstanding subsections (a) and
(b), the President may not authorize electronic surveillance of a
United States person under this section without an order under this
title for a period of more than 60 days unless the President, acting
through the Attorney General, submits a certification to the
congressional intelligence committees that--
          ``(1) the continued electronic surveillance of the United
        States person is vital to the national security of the United
        States;
          ``(2) describes the circumstances that have prevented the
        Attorney General from obtaining an order under this title for
        continued surveillance;
          ``(3) describes the reasons for believing the United States
        person is affiliated with or in communication with an entity or
        an affiliate of an entity that is reasonably believed to be
        responsible for imminent threat of attack; and
          ``(4) describes the foreign intelligence information derived
        from the electronic surveillance conducted under this section.
  ``(f) Use of Information.--Information obtained pursuant to
electronic surveillance under this subsection may be used to obtain an
order authorizing subsequent electronic surveillance under this title.
  ``(g) Definitions.--In this section:
          ``(1) Congressional intelligence committees.--The term
        `congressional intelligence committees' means the Permanent
        Select Committee on Intelligence of the House of
        Representatives and the Select Committee on Intelligence of the
        Senate.
          ``(2) Congressional leadership.--The term `congressional
        leadership' means the Speaker and minority leader of the House
        of Representatives and the majority leader and minority leader
        of the Senate.
          ``(3) Foreign intelligence surveillance court.--The term
        `Foreign Intelligence Surveillance Court' means the court
        established under section 103(a).
          ``(4) Other relevant committees.--The term `other relevant
        committees' means the Committees on Appropriations, the
        Committees on Armed Services, and the Committees on the
        Judiciary of the House of Representatives and the Senate.'';
        and
          (2) in the table of contents in the first section, by
        inserting after the item relating to section 112, as added by
        section 8(2), the following new item:

``Sec. 113. Authorization due to imminent threat.''.

SEC. 10. CONGRESSIONAL OVERSIGHT.

  (a) Electronic Surveillance Under FISA.--Section 108(a) of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1808(a)) is
amended--
          (1) in paragraph (2)--
                  (A) in subparagraph (B), by striking ``and'' at the
                end;
                  (B) in subparagraph (C), by striking the period and
                inserting ``; and''; and
                  (C) by adding at the end the following new
                subparagraph:
                  ``(D) the authority under which the electronic
                surveillance is conducted.''; and
          (2) by adding at the end the following new paragraph:
          ``(3) Each report submitted under this subsection shall
        include reports on electronic surveillance conducted without a
        court order.''.
  (b) Intelligence Activities.--The National Security Act of 1947 (50
U.S.C. 401 et seq.) is amended--
          (1) in section 501 (50 U.S.C. 413)--
                  (A) by redesignating subsection (f) as subsection
                (g); and
                  (B) by inserting after subsection (e) the following
                new subsection:
  ``(f) The Chair of each of the congressional intelligence committees,
in consultation with the ranking member of the committee for which the
person is Chair, may inform--
          ``(1) on a bipartisan basis, all members or any individual
        members of such committee, and
          ``(2) any essential staff of such committee,
of a report submitted under subsection (a)(1) or subsection (b) as such
Chair considers necessary.'';
          (2) in section 502 (50 U.S.C. 414), by adding at the end the
        following new subsection:
  ``(d) Informing of Committee Members.--The Chair of each of the
congressional intelligence committees, in consultation with the ranking
member of the committee for which the person is Chair, may inform--
          ``(1) on a bipartisan basis, all members or any individual
        members of such committee, and
          ``(2) any essential staff of such committee,
of a report submitted under subsection (a) as such Chair considers
necessary.''; and
          (3) in section 503 (50 U.S.C. 415), by adding at the end the
        following new subsection:
  ``(g) The Chair of each of the congressional intelligence committees,
in consultation with the ranking member of the committee for which the
person is Chair, may inform--
          ``(1) on a bipartisan basis, all members or any individual
        members of such committee, and
          ``(2) any essential staff of such committee,
of a report submitted under subsection (b), (c), or (d) as such Chair
considers necessary.''.

SEC. 11. TECHNICAL AND CONFORMING AMENDMENTS.

  The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.) is further amended--
          (1) in section 102(a)(3)(A), by striking ``sections 101(h)(4)
        and'' and inserting ``section'';
          (2) in section 105(a)(4), as redesignated by section
        5(1)(B)--
                  (A) by striking ``104(a)(7)(E)'' and inserting
                ``104(a)(6)(D)''; and
                  (B) by striking ``104(d)'' and inserting ``104(c)'';
          (3) in section 106--
                  (A) in subsection (j) in the matter preceding
                paragraph (1), by striking ``105(e)'' and inserting
                ``105(d)''; and
                  (B) in subsection (k)(2), by striking
                ``104(a)(7)(B)'' and inserting ``104(a)(6)(B)''; and
          (4) in section 108(a)(2)(C), by striking ``105(f)'' and
        inserting ``105(e)''.

                                Purpose

    The purpose of H.R. 5825 is to modernize the Foreign
Intelligence Surveillance Act, to strengthen oversight of the
executive branch concerning electronic surveillance and
intelligence, and to provide clear electronic surveillance
authority to the nation's intelligence agencies in the event of
a terrorist attack, armed attack, or imminent threat against
the United States.

                     Committee Statement and Views


A. Background and need for legislation

    The Foreign Intelligence Surveillance Act (``FISA'')
provides the legal framework for collecting specified types of
foreign intelligence information within the United States. The
current legal and technical framework relative to FISA was
constructed in 1978. The complexity, variety and means of
communications technology has since mushroomed exponentially
and globally--but the structure of our surveillance laws has
remained hidebound around the technology of generations-old
wired telephones.
    The Committee received testimony that the current
provisions of FISA are ``dangerously obsolete''. This bill
modernizes the law in a number of critical respects. It updates
FISA to make it technology neutral, and neutral as to the means
of communication. It streamlines the surveillance approval
process to keep the focus on gaining knowledge of those who
would do harm to the United States while protecting the civil
liberties of average Americans. It gives our intelligence
personnel the necessary tools to help detect and prevent acts
of terrorism, and to respond to armed attacks and terrorist
attacks. As reported, the bill also ensures that adequate
authority exists to conduct necessary electronic surveillance
when a threat of imminent attack exists.
    H.R. 5825 also enhances congressional and judicial
oversight of U.S. government electronic surveillance activities
to ensure that activities conducted under both FISA and the
authorities provided in the bill will be utilized by the
President only with the knowledge and coordination of the other
branches of government. More broadly than just FISA, the bill
as reported also addresses fundamental separation of powers
concerns expressed by members of the Committee through
amendments to the National Security Act by providing express
authority for the Chairmen of the congressional intelligence
Committees to broaden reporting on sensitive issues to
additional members of the Committee at his or her discretion on
a bipartisan basis in the necessary circumstances.
    This bill enhances the overall authorities of our nation to
act as a whole to protect itself in times of war and heightened
threat of attack--both terrorist and otherwise.

B. Legislation

    The bill contains provisions relating to modernization of
the Foreign Intelligence Surveillance Act, additional
authorization to conduct limited electronic surveillance in
specifically defined emergency circumstances with enhanced
reporting to Congress and the Judiciary, and to enhance
congressional oversight of both electronic surveillance and
other intelligence and intelligence-related activities of the
United States.
            1. FISA modernization
    Sections two through six of the bill, further detailed in
the following section-by-section analysis, contain provisions
intended to modernize the Foreign Intelligence Surveillance
Act. The bill updates the definition of electronic surveillance
contained in the statute to make it technology neutral and to
ensure that the FISA process is directed to circumstances where
a reasonable expectation of privacy exists and a warrant would
be required for law enforcement purposes. The bill also would
modernize and simplify the process of getting a FISA warrant in
order to focus resources on protecting the civil liberties of
Americans.
            2. Enhanced authorities
    Sections seven through nine of the reported bill provide
clear authority to United States intelligence agencies in the
event of an armed attack, terrorist attack, or threat of
imminent attack on the United States. These provisions include
limits on the type of surveillance that may be conducted, and
provide for enhanced accountability.
    Section seven expands the authority in current law to
conduct electronic surveillance following an armed attack
against the United States to a period of sixty days, and adds a
requirement that the President submit notification of any
authorization under this authority to the congressional
intelligence committees.
    Section eight provides authority to conduct specified
electronic surveillance after a terrorist attack on the United
States, on notification to the congressional intelligence
committees and a judge of the FISA court. The authority is
limited to renewable 45 day periods, and the authorization is
limited to electronic surveillance of persons when the
President determines there is a reasonable belief that a person
is communicating with a terrorist organization or an affiliate
of a terrorist organization that is reasonably believed to be
responsible for the terrorist attack, and that the information
obtained may be foreign intelligence information. Additional
constraints are provided with respect to electronic
surveillance of United States persons.
    Section nine provides authority to conduct specified
electronic surveillance when the President has determined that
there exists an imminent threat of attack likely to cause
death, serious injury, or substantial economic damage to the
United States, on notification to the congressional
intelligence committees and the FISA court. The authority is
limited to renewable 90 day periods, and additional
congressional committees must be notified if the authority is
renewed. The authorization is limited to electronic
surveillance of persons when the President determines there is
a reasonable belief that a person is communicating with the
entity or an affiliate reasonably believed to be responsible
for the imminent threat of attack, and that the information
obtained may be foreign intelligence information. Additional
constraints are provided with respect to electronic
surveillance of United States persons.
            3. Enhanced Congressional oversight
    The bill enhances congressional oversight not only of
electronic surveillance, but also more generally of
intelligence and intelligence-related activities of the United
States Government. Each of the enhanced authorities provided in
the bill includes specific and detailed requirements for
reporting to Congress. In addition, Section ten of the bill
requires the FISA semi-annual report to include information
regarding the authority under which electronic surveillance is
conducted, and provides for reporting on any electronic
surveillance conducted without a court order.
    The bill also makes significant amendments to the National
Security Act of 1947 that would authorize the Chair of each of
the congressional intelligence committees to inform any or all
other members and essential staff of each Committee of
reporting of intelligence activities received under that Act,
on a bipartisan basis, as such Chair considers necessary in his
or her discretion.

                           Committee Hearings

    The Committee held two public hearings with respect to
modernization of the Foreign Intelligence Surveillance Act. On
July 19, 2006, the Committee received testimony from Judge
Richard A. Posner; Mr. Kim Taipale of the Center for Advanced
Studies in Science and Technology Policy; Mr. Michael Greco of
the American Bar Association; and Mr. James Dempsey of the
Center for Democracy and Technology. On July 27, 2006, the
Committee received testimony from Representative Heather Wilson
regarding H.R. 5825; from Representative John Conyers regarding
H.R. 5371; and from Representative Adam Schiff and
Representative Jeff Flake regarding H.R. 4976.

               Committee Consideration and Rollcall Votes

    On September 20, 2006, the Committee met in open session
and ordered the bill H.R. 5825 favorably reported, as amended.
    Ms. Wilson offered an amendment in the nature of a
substitute to H.R. 5825, which was considered as base text by
unanimous consent. The contents of the amendment in the nature
of a substitute are described in the Section-by-Section
analysis and the Explanation of Amendment. The Committee
considered the following amendments:
    Ms. Harman offered an amendment in the nature of a
substitute containing the text of H.R. 5371, the ``LISTEN
Act''. It was not agreed to by a record vote of 9 ayes to 10
noes:
          Voting aye: Ms. Harman, Mr. Hastings, Mr. Reyes, Mr.
        Boswell, Mr. Cramer, Ms. Eshoo, Mr. Holt, Mr.
        Ruppersberger, Mr. Tierney.
          Voting no: Mr. Hoekstra (Chairman), Mr. LaHood, Mr.
        Everett, Mr. Gallegly, Ms. Wilson, Ms. Davis, Mr.
        Thornberry, Mr. McHugh, Mr. Tiahrt, Mr. Renzi.
    Ms. Eshoo offered an amendment making modifications to the
definition of electronic surveillance. It was not agreed to by
a record vote of 9 ayes to 10 noes:
          Voting aye: Ms. Harman, Mr. Hastings, Mr. Reyes, Mr.
        Boswell, Mr. Cramer, Ms. Eshoo, Mr. Holt, Mr.
        Ruppersberger, Mr. Tierney.
          Voting no: Mr. Hoekstra (Chairman), Mr. LaHood, Mr.
        Everett, Mr. Gallegly, Ms. Wilson, Ms. Davis, Mr.
        Thornberry, Mr. McHugh, Mr. Tiahrt, Mr. Renzi.
    Mr. Hastings offered an amendment relating to acquisition
of communications among foreign parties. It was not agreed to
by a record vote of 8 ayes to 11 noes:
          Voting aye: Ms. Harman, Mr. Hastings, Mr. Reyes, Mr.
        Boswell, Mr. Cramer, Mr. Holt, Mr. Ruppersberger, Mr.
        Tierney.
          Voting no: Mr. Hoekstra (Chairman), Mr. LaHood, Mr.
        Everett, Mr. Gallegly, Ms. Wilson, Ms. Davis, Mr.
        Thornberry, Mr. McHugh, Mr. Tiahrt, Mr. Renzi, Mr.
        Issa.
    Mr. Holt offered an amendment inserting a finding that in
passing the Foreign Intelligence Surveillance Act, Congress
expressly stated that FISA and specified provisions of title
18, United States Code, were the exclusive means by which
surveillance can be conducted in the United States. It was not
agreed to by a record vote of 8 ayes to 9 noes:
          Voting aye: Ms. Harman, Mr. Hastings, Mr. Reyes, Mr.
        Boswell, Mr. Cramer, Mr. Holt, Mr. Ruppersberger, Mr.
        Tierney.
          Voting no: Mr. Hoekstra (Chairman), Mr. LaHood, Mr.
        Everett, Ms. Wilson, Ms. Davis, Mr. Thornberry, Mr.
        McHugh, Mr. Tiahrt, Mr. Renzi.
    Mr. Reyes offered an amendment inserting a finding that the
Authorization for Use of Military Force (Public Law 107-40)
does not constitute legal authorization for electronic
surveillance not authorized by specified provisions of Title
18, United States Code, or the Foreign Intelligence
Surveillance Act. It was not agreed to by a record vote of 8
ayes to 9 noes:
          Voting aye: Ms. Harman, Mr. Hastings, Mr. Reyes, Mr.
        Boswell, Mr. Cramer, Mr. Holt, Mr. Ruppersberger, Mr.
        Tierney.
          Voting no: Mr. Hoekstra (Chairman), Mr. LaHood, Mr.
        Everett, Ms. Wilson, Ms. Davis, Mr. Thornberry, Mr.
        McHugh, Mr. Tiahrt, Mr. Renzi.
    Mr. Holt offered an amendment inserting a finding that in
passing the Foreign Intelligence Surveillance Act, Congress
expressly stated that FISA and specified provisions of title
18, United States Code, were the exclusive means by which
electronic surveillance can be conducted in the United States.
It was not agreed to by a record vote of 8 ayes to 9 noes:
          Voting aye: Ms. Harman, Mr. Hastings, Mr. Reyes, Mr.
        Boswell, Mr. Cramer, Mr. Holt, Mr. Ruppersberger, Mr.
        Tierney.
          Voting no: Mr. Hoekstra (Chairman), Mr. LaHood, Mr.
        Everett, Ms. Wilson, Ms. Davis, Mr. Thornberry, Mr.
        McHugh, Mr. Tiahrt, Mr. Renzi
    The Committee then adopted the amendment in the nature of a
substitute by a record vote of 9 ayes to 8 noes:
          Voting aye: Mr. Hoekstra (Chairman), Mr. LaHood, Mr.
        Everett, Ms. Wilson, Ms. Davis, Mr. Thornberry, Mr.
        McHugh, Mr. Tiahrt, Mr. Renzi.
          Voting no: Ms. Harman, Mr. Hastings, Mr. Reyes, Mr.
        Boswell, Mr. Cramer, Mr. Holt, Mr. Ruppersberger, Mr.
        Tierney
    By voice vote, the Committee adopted a motion by the
Chairman to favorably report the bill H.R. 5825 to the House,
as amended.

      Section-by-Section Analysis and Explanation of the Amendment

    The provisions of the bill are as follows:

Section 1--Short title

    Section 1 contains the short title for the bill.

Section 2--FISA definitions

    Section 2 would update the definition of electronic
surveillance. This change would update the law to take into
account significant changes in technology since the enactment
of the Foreign Intelligence Surveillance Act (``FISA''). This
section would remove the current distinction between treatment
of ``wire'' and ``radio'' communications, and use a technology-
neutral definition of electronic surveillance. This section
also provides protection for persons with a reasonable
expectation of privacy if both the sender and all intended
recipients are located within the United States.

Section 3--Authorization for electronic surveillance for foreign
        intelligence purposes

    Section 3 would modernize the law by including providers of
any electronic communication service, landlord, custodian, or
other person who has access to electronic communications. This
section updates the current ``common carrier'' definition.

Sections 4 and 5--Applications for court orders/issuance of an order

    Sections 4 and 5 would simplify the process for developing
information to get approval of a FISA warrant. This section
would reduce the volume of material required for a FISA
application, including minimizing the detailed description of
the nature of foreign intelligence information sought and the
detailed descriptions of the intended method of collection. The
FISA application should focus on probable cause for a warrant
rather than technical details about the means of collection.
Current protections and minimization procedures will remain in
place to protect unintended targets. In the event of an
emergency employment of electronic surveillance, the Attorney
General would have up to five days to file for an emergency
application.

Section 6--Use of information

    Section 6 clarifies and makes conforming changes with
respect to previous sections and FISA.

Section 7--Authorization after an armed attack

    Section 7 updates the current FISA provisions for
electronic surveillance to provide clear authority for U.S.
intelligence agencies to conduct electronic surveillance in the
event of an armed attack on the United States. The President,
through the Attorney General, is authorized to collect
electronic surveillance without a court order to acquire
foreign intelligence information for a period not to exceed 60
days following an armed attack against the territory of the
United States. The current statute allows for 15 days after a
declaration of war by the Congress. Notification to the House
Permanent Select Committee on Intelligence (``HPSCI'') and
Senate Select Committee on Intelligence (``SSCI'') is required.

Section 8--Authorization of electronic surveillance after a terrorist
        attack

    Section 8 governs electronic surveillance after a terrorist
attack. The President, acting through the Attorney General,
would have the authority to authorize electronic surveillance
to acquire foreign intelligence information without an order
when the terrorist organizations and their affiliates
responsible for the attack have been identified and notified to
the Congress and the FISA court, when there is a reasonable
belief that the target is communicating with a terrorist
organization, for a period not to exceed 45 days following a
terrorist attack against the U.S. Notification to the HPSCI and
SSCI and to the FISA court is required. The President may
submit a subsequent certification to Congress which would allow
for an additional 45 days of electronic surveillance.

Section 9--Authorization of electronic surveillance after threat of
        imminent attack

    Section 9 allows the President to authorize electronic
surveillance when there exists an imminent threat of attack
likely to cause death, serious injury, or substantial economic
damage to the United States when the entities and their
affiliates responsible for the threat have been identified and
notified to the Congress and the FISA court, when there is a
reasonable belief that the target is communicating with those
entities and affiliates, for a period not to exceed 90 days.
The President must submit notification to Congress as soon as
practicable, but not later than five days after the
authorization. The President may submit subsequent
certifications to Congress which would allow for additional 90
day periods of surveillance, with notification to additional
congressional committees.

Section 10--Congressional oversight

    Section 10 of the Act would strengthen congressional
oversight by amending current law to provide authority to the
Chairman of each of the Intelligence Committees to notify all
members or any individual members of the Committees, on a
bipartisan basis and as the Chair considers necessary, of
reporting of intelligence activities received under the
National Security Act.

Section 11--Technical and conforming amendments

    Section 11 makes technical clarifications and conforming
amendments to FISA.

                 Oversight Findings and Recommendations

    With respect to clause 3(c)(1) of rule XIII of the Rules of
the House of Representatives, the Committee held two open
hearings, receiving testimony from outside experts, interested
citizens, and Members of Congress. The Committee reports that
the findings and recommendations of the Committee are reflected
in the bill, as reported by the Committee.

                General Performance Goals and Objectives

    In accordance with Clause (3)(c) of House rule XIII, the
Committee's performance goals and objectives are reflected in
the descriptive portions of this report.

                   Constitutional Authority Statement

    The intelligence and intelligence-related activities of the
United States government are carried out to support the
national security interests of the United States.
    Article 1, section 8 of the Constitution of the United
States provides, in pertinent part, that `Congress shall have
power * * * to pay the debts and provide for the common defense
and general welfare of the United States; * * *'; and `to make
all laws which shall be necessary and proper for carrying into
execution * * * all other powers vested by this Constitution in
the Government of the United States, or in any Department or
Officer thereof.'

                       Unfunded Mandate Statement

    Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandates Reform Act, P.L. 104-4) requires a statement of
whether the provisions of the reported bill include unfunded
mandates. In compliance with this requirement, the Committee
has received a letter from the Congressional Budget Office
included herein.

                Applicability to the Legislative Branch

    The Committee finds that the legislation does not address
the terms of conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.

                           Earmarks Statement

    The reported bill contains no earmarks, as defined in H.
Res. 1000.

     Budget Authority and Congressional Budget Office Cost Estimate

    With respect to the requirements of clause 3(c)(2) of rule
XIII of the House of Representatives and section 308(a) of the
Congressional Budget Act of 1974 and with respect to
requirements of 3(c)(3) of rule XIII of the House of
Representatives and section 402 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for H.R. 5825 from the Director of the Congressional Budget
Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                Washington, DC, September 25, 2006.
Hon. Peter Hoekstra,
Chairman, Permanent Select Committee on Intelligence,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 5825, the
Electronic Surveillance Modernization Act.
    If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Jason
Wheelock.
            Sincerely,
                                          Donald B. Marron,
                                                   Acting Director.
    Enclosure.

H.R. 5825--Electronic Surveillance Modernization Act

    Summary: H.R. 5825 would modify the rules and procedures
the government must follow to use electronic surveillance
programs in the investigation of international terrorism. The
bill would amend the definition of electronic surveillance
under the Foreign Intelligence Surveillance Act (FISA) to
remove the current distinction between treatment of wire and
radio communications, and to focus FISA protections on domestic
communications.
    The bill also would expand the ability of the government to
conduct electronic surveillance without warrant when:
           The target of the surveillance is an agent
        of a foreign power;
           There has been an armed attack against the
        territory of the United States;
           There has been a terrorist attack against
        the United States; or
           There exists an imminent threat of attack
        likely of cause death, serious injury, or substantial
        economic damage to the United States.
    H.R. 5825 would also authorize the Attorney General, after
obtaining the certification required under the bill, to require
any U.S. citizen, legal alien, or organization with access to
electronic communications to provide the government with all
assistance necessary to conduct electronic surveillance and to
acquire foreign intelligence information. Under current law,
the Attorney General may direct a ``common carrier'' to provide
such assistance with electronic surveillance. Thus,
implementing H.R. 5825 could expand the number of entities that
may be required to provide assistance to the government when it
conducts electronic surveillance.
    The bill would also make a number of changes that could
reduce the volume of material required for a FISA application,
including minimizing the detailed descriptions of both the
nature of the foreign intelligence information sought and the
intended method of collection.
    CBO has no basis for predicting how the volume or type of
surveillance would be changed if H.R. 5825 were enacted.
Furthermore, information regarding surveillance techniques and
their associated costs is classified. For these reasons, CBO
cannot estimate the impact on the federal budget of
implementing H.R. 5825.
    Section 4 of the Unfunded Mandates Reform Act (UMRA)
excludes from the application of that act any legislative
provisions that are necessary for national security. CBO has
determined that section 9 of this bill, which would authorize
certain electronic surveillance without a warrant due to an
imminent threat of attack, falls under that exclusion; we have
not reviewed it for intergovernmental or private-sector
mandates.
    One of the other provisions of H.R. 5825 contains an
intergovernmental mandate, but CBO estimates that costs to
state and local governments would fall well below the annual
threshold established in UMRA ($64 million in 2006, adjusted
annually for inflation).
    H.R. 5825 contains a private-sector mandate, as defined in
UMRA, because it would require certain entities to assist the
government with electronic surveillance. Because CBO has no
information about the prevalence of electronic surveillance and
the cost of compliance for entities assisting the government
with electronic surveillance, CBO has no basis for estimating
the costs of the mandate or whether those costs would exceed
the annual threshold established by UMRA for private-sector
mandates ($128 million in 2006, adjusted annually for
inflation).
    Estimated cost to the Federal Government: CBO cannot
estimate the budgetary impact of implementing H.R. 5825 because
we cannot predict how the volume or type of surveillance would
change under this legislation. Moreover, information regarding
surveillance technologies and their associated costs are
classified.
    Any changes in federal spending under the bill would be
subject to the appropriation of the necessary funds. Enacting
H.R. 5825 would not affect direct spending or revenues.
    Estimated impact on state, local, and tribal governments:
Section 4 of UMRA excludes from the application of that act any
legislative provisions that are necessary for national
security. CBO has determined that section 9 of the bill, which
authorizes certain electronic surveillance without a warrant
due to an imminent threat of attack, falls under that
exclusion; we have not reviewed it for intergovernmental
mandates.
    One of the other provisions of the bill contains an
intergovernmental mandate, as defined in UMRA, because it would
allow federal law enforcement officers to direct public
institutions such as libraries to provide information. Because
data about the number of public entities currently complying
with similar requests and the costs of that compliance are
classified, CBO cannot estimate the total costs state and local
governments would incur to comply with this mandate. Based on
information from a recent survey of public libraries, however,
CBO estimates that the number of requests would probably be
small and that the total costs to those entities would be well
below the annual threshold established in UMRA ($64 million in
2006, adjusted annually for inflation).
    Estimated impacts on the private sector: Section 4 of UMRA
excludes from the application of that act any legislative
provisions that are necessary for national security. CBO has
determined that section 9 of the bill, which authorizes certain
electronic surveillance without a warrant due to imminent
threat of attack, falls under that exclusion and has not
reviewed it for private-sector mandates.
    H.R. 5825 contains a private-sector mandate, as defined in
UMRA, because it would require certain entities to assist the
government with electronic surveillance. CBO has no basis for
estimating the costs of the mandate or whether those costs
would exceed the annual threshold established by UMRA for
private-sector mandates ($128 million in 2006, adjusted
annually for inflation).
    H.R. 5825 would authorize the Attorney General, after
obtaining the certification required under the bill, to direct
a person to immediately provide the government with all
information, facilities, and assistance necessary to conduct
electronic surveillance and to acquire foreign intelligence.
Under current law, the Attorney General may direct a ``common
carrier'' to provide such assistance with electronic
surveillance. This bill would expand the scope of entities that
must comply with the government's orders in such cases. Because
CBO has no information about how often such entities would be
directed to provide assistance or the costs associated with
providing assistance, CBO has no basis for estimating the costs
of this mandate. The bill also would authorize the government
to compensate, at the prevailing rate, a person for providing
such information, facilities, or assistance.
    Previous CBO estimate: On September 25, 2006, CBO
transmitted a cost estimate for H.R. 5825, as ordered reported
by the House Committee on the Judiciary on September 20, 2006.
The language of the two versions of the bill is similar. CBO
cannot estimate the federal budgetary impact of implementing
either version of H.R. 5825 because we cannot predict how the
volume or type of surveillance would change under either
version.
    The House Judiciary version includes an intergovernmental
and private-sector mandate that is not included in the
Intelligence Committee's bill. That provision would provide
protection from a cause of action for any person providing
information, facilities, or assistance as well as conducting
physical searches in accordance with a directive from the
Attorney General under the bill.
    Estimate prepared by: Federal Costs: Jason Wheelock. Impact
on State, Local, and Tribal Governments: Melissa Merrell.
Impact on the Private Sector: Victoria Liu.
    Estimate approved by: Robert A. Sunshine, Assistant
Director for Budget Analysis.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):

             FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978


     AN ACT To authorize electronic surveillance to obtain foreign
                       intelligence information.

  Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That this
Act may be cited as the ``Foreign Intelligence Surveillance Act
of 1978''.

                            TABLE OF CONTENTS

 TITLE I--ELECTRONIC SURVEILLANCE WITHIN THE UNITED STATES FOR FOREIGN
                          INTELLIGENCE PURPOSES

Sec. 101.  Definitions.
     * * * * * * *
Sec. 112. Authorization following a terrorist attack upon the United
          States.
Sec. 113. Authorization due to imminent threat.

           *       *       *       *       *       *       *


 TITLE I--ELECTRONIC SURVEILLANCE WITHIN THE UNITED STATES FOR FOREIGN
                         INTELLIGENCE PURPOSES

                              DEFINITIONS

  Sec. 101. As used in this title:
          (a) * * *
  (b) ``Agent of a foreign power'' means--
          (1) any person other than a United States person,
        who--
                  (A) * * *
                  (B) acts for or on behalf of a foreign power
                which engages in clandestine intelligence
                activities in the United States contrary to the
                interests of the United States, when the
                circumstances of such person's presence in the
                United States indicate that such person may
                engage in such activities in the United States,
                or when such person knowingly aids or abets any
                person in the conduct of such activities or
                knowingly conspires with any person to engage
                in such activities; [or]

           *       *       *       *       *       *       *

                  (D) possesses or is reasonably expected to
                transmit or receive foreign intelligence
                information while in the United States; or

           *       *       *       *       *       *       *

  [(f) ``Electronic surveillance'' means--
          [(1) the acquisition by an electronic, mechanical, or
        other surveillance device of the contents of any wire
        or radio communications sent by or intended to be
        received by a particular, known United States person
        who is in the United States, if the contents are
        acquired by intentionally targeting that United States
        person, under circumstances in which a person has a
        reasonable expectation of privacy and a warrant would
        be required for law enforcement purposes;
          [(2) the acquisition by an electronic, mechanical, or
        other surveillance device of the contents of any wire
        communication to or from a person in the United States,
        without the consent of any party thereto, if such
        acquisition occurs in the United States, but does not
        include the acquisition of those communications of
        computer trespassers that would be permissible under
        section 2511(2)(i) of title 18, United States Code;
          [(3) the intentional acquisition by an electronic,
        mechanical, or other surveillance device of the
        contents of any radio 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 located within the
        United States; or
          [(4) the installation or use of an electronic,
        mechanical, or other surveillance device in the United
        States for monitoring to acquire information, other
        than from a wire or radio communication, under
        circumstances in which a person has a reasonable
        expectation of privacy and a warrant would be required
        for law enforcement purposes.]
  (f) ``Electronic surveillance'' means--
          (1) the installation or use of a surveillance device
        for the intentional collection of information relating
        to a person who is reasonably believed to be in the
        United States by intentionally targeting that person,
        under circumstances in which the 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, without the consent of a party to
        the communication, under circumstances in which a
        person has a reasonable expectation of privacy and a
        warrant would be required for law enforcement purposes,
        if both the sender and all intended recipients are
        located within the United States.

           *       *       *       *       *       *       *

  (h) ``Minimization procedures'', with respect to electronic
surveillance, means--
          (1) * * *
          (2) procedures that require that nonpublicly
        available information, which is not foreign
        intelligence information, as defined in subsection
        (e)(1), 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 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[; and].
          [(4) notwithstanding paragraphs (1), (2), and (3),
        with respect to any electronic surveillance approved
        pursuant to section 102(a), procedures that require
        that no contents of any communication to which a United
        States person is a party shall be disclosed,
        disseminated, or used for any purpose or retained for
        longer than 72 hours 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.]

           *       *       *       *       *       *       *

  [(l) ``Wire communication'' means any communications while it
is being carried by a wire, cable, or other like connection
furnished or operated by any person engaged as a common carrier
in providing or operating such facilities for the transmission
of interstate or foreign communications.]
  (l) ``Surveillance device'' is a device that allows
surveillance by the Federal Government, but excludes any device
that extracts or analyzes information from data that has
already been acquired by the Federal Government by lawful
means.

           *       *       *       *       *       *       *


  AUTHORIZATION FOR ELECTRONIC SURVEILLANCE FOR FOREIGN INTELLIGENCE
                                PURPOSES

    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 one year if the Attorney General certifies in writing under
oath that--
          (A) the electronic surveillance is solely directed
        at--
                  (i) the acquisition of the contents of
                communications [transmitted by means of
                communications used exclusively between or
                among foreign powers, as defined in section
                101(a) (1), (2), or (3); or] of a foreign
                power, as defined in paragraph (1), (2), or (3)
                of section 101(a), or an agent of a foreign
                power, as defined in section 101(b)(1); 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 section
                101(a) (1), (2), or (3); and
          [(B) there is no substantial likelihood that the
        surveillance will acquire the contents of any
        communications to which a United States person is a
        party; and]
          [(C)] (D) the proposed minimization procedures with
        respect to such surveillance meet the definition of
        minimization procedures under section 101(h); and

           *       *       *       *       *       *       *

  (3) The Attorney General shall immediately transmit under
seal to the court established under section 103(a) a copy of
his certification. 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 [sections 101(h)(4) and]
        section 104; or

           *       *       *       *       *       *       *

  [(4) With respect to electronic surveillance authorized by
this subsection, the Attorney General may direct a specified
communication common carrier to--
          [(A) furnish all information, facilities, or
        technical assistance necessary to accomplish the
        electronic surveillance in such a manner as will
        protect its secrecy and produce a minimum of
        interference with the services that such carrier is
        providing its customers; and
          [(B) maintain under security procedures approved by
        the Attorney General and the Director of National
        Intelligence any records concerning the surveillance or
        the aid furnished which such carrier wishes to retain.
The Government shall compensate, at the prevailing rate, such
carrier for furnishing such aid.]
  [(b) 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 section 103, 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, except that the court shall not have jurisdiction
to grant any order approving electronic surveillance directed
solely as described in paragraph (1)(A) of subsection (a)
unless such surveillance may involve the acquisition of
communications of any United States person.]
  (b)(1) The Attorney General may require, by written
certification, any person with authorized access to electronic
communications or equipment used to transmit or store
electronic communications to provide information, facilities,
or technical assistance--
          (A) necessary to accomplish electronic surveillance
        authorized under subsection (a); or
          (B) to an official designated by the President for a
        period of up to one year, provided the Attorney General
        certifies in writing, under oath, that the provision of
        the information, facilities, or technical assistance
        does not constitute electronic surveillance.
  (2) The Attorney General may require a person providing
information, facilities, or technical assistance under
paragraph (1) to--
          (A) provide the information, facilities, or technical
        assistance in such a manner as will protect the secrecy
        of the provision of such information, facilities, or
        technical assistance and produce a minimum of
        interference with the services that such person is
        providing the customers of such person; and
          (B) maintain under security procedures approved by
        the Attorney General and the Director of National
        Intelligence any records concerning such electronic
        surveillance or the information, facilities, or
        technical assistance provided which such person wishes
        to retain.
  (3) The Government shall compensate, at the prevailing rate,
a person for providing information, facilities, or technical
assistance pursuant to paragraph (1).
  (c) Notwithstanding any other provision of law, the President
may designate an official who may authorize electronic
surveillance of international radio communications of a
diplomat or diplomatic mission or post of the government of a
foreign country in the United States in accordance with
procedures approved by the Attorney General.

           *       *       *       *       *       *       *


                        APPLICATION FOR AN ORDER

    Sec. 104. (a) Each application for an order approving
electronic surveillance under this title shall be made by a
Federal officer in writing upon oath or affirmation to a judge
having jurisdiction under section 103. Each application shall
require the approval of the Attorney General based upon his
finding that it satisfies the criteria and requirements of such
application as set forth in this title. It shall include--
          (1) * * *

           *       *       *       *       *       *       *

          [(6) a detailed description of the nature of the
        information sought and the type of communications or
        activities to be subjected to the surveillance;]
          [(7)] (6) a certification or certifications by the
        Assistant to the President for National Security
        Affairs or an executive branch official [or officials
        designated by the President from among those executive
        officers employed in the area of national security or
        defense and appointed by the President with the advice
        and consent of the Senate] designated by the President
        to authorize electronic surveillance for foreign
        intelligence purposes--
                  (A) * * *

           *       *       *       *       *       *       *

                  (C) that such information cannot reasonably
                be obtained by normal investigative techniques;
                and
                  [(D) that designates the type of foreign
                intelligence information being sought according
                to the categories described in section 101(e);
                and
                  [(E) 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;]
                  (D) including a statement of the basis for
                the certification that the information sought
                is the type of foreign intelligence information
                designated;
          [(8) a statement of the means by which the
        surveillance will be effected and] (7) a statement
        whether physical entry is required to effect the
        surveillance; and
          [(9) a 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;]
          [(10)] (8) 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[; and].
          [(11) whenever more than one electronic, mechanical
        or other surveillance device is to be used with respect
        to a particular proposed electronic surveillance, the
        coverage of the devices involved and what minimization
        procedures apply to information acquired by each
        device.]
  [(b) Whenever the target of the electronic surveillance is a
foreign power, as defined in section 101(a) (1), (2), or (3),
and each of the facilities or places at which the surveillance
is directed is owned, leased, or exclusively used by that
foreign power, the application need not contain the information
required by paragraphs (6), (7)(E), (8), and (11) of subsection
(a), but shall state whether physical entry is required to
effect the surveillance and shall contain such information
about the surveillance techniques and communications or other
information concerning United States persons likely to be
obtained as may be necessary to assess the proposed
minimization procedures.]
  [(c)] (b) The Attorney General may require any other
affidavit or certification from any other officer in connection
with the application.
  [(d)] (c) The judge may require the applicant to furnish such
other information as may be necessary to make the
determinations required by section 105.
  [(e)] (d)(1)(A) * * *

           *       *       *       *       *       *       *


                          ISSUANCE OF AN ORDER

    Sec. 105. (a) Upon an application made pursuant to section
104, the judge shall enter an ex parte order as requested or as
modified approving the electronic surveillance if he finds
that--
          [(1) the President has authorized the Attorney
        General to approve applications for electronic
        surveillance for foreign intelligence information;]
          [(2)] (1) the application has been made by a Federal
        officer and approved by the Attorney General;
          [(3)] (2) on the basis of the facts submitted by the
        applicant there is probable cause to believe that--
                  (A) the target of the electronic surveillance
                is a foreign power or an agent of a foreign
                power: Provided, That no United States person
                may be considered a foreign power or an agent
                of a foreign power solely upon the basis of
                activities protected by the first amendment to
                the Constitution of the United States; and
                  (B) each of the facilities or places at which
                the electronic surveillance is directed is
                being used, or is about to be used, by a
                foreign power or an agent of a foreign power;
          [(4)] (3) the proposed minimization procedures meet
        the definition of minimization procedures under section
        101(h); and
          [(5)] (4) the application which has been filed
        contains all statements and certifications required by
        section 104 and, if the target is a United States
        person, the certification or certifications are not
        clearly erroneous on the basis of the statement made
        under section [104(a)(7)(E)] 104(a)(6)(D) and any other
        information furnished under section [104(d)] 104(c).

           *       *       *       *       *       *       *

  (c)(1) Specifications.--An order approving an electronic
surveillance under this section shall specify--
          (A) * * *
          (B) the nature and location of each of the facilities
        or places at which the electronic surveillance will be
        directed, if known; and
          [(C) the type of information sought to be acquired
        and the type of communications or activities to be
        subjected to the surveillance;
          [(D) the means by which the electronic surveillance
        will be effected and whether physical entry will be
        used to effect the surveillance;]
          [(E) the means by which the electronic surveillance
        will be effected and whether physical entry will be
        used to effect the surveillance;]
          [(F) whenever more than one electronic, mechanical,
        or other surveillance device is to be used under the
        order, the authorized coverage of the devices involved
        and what minimization procedures shall apply to
        information subject to acquisition by each device.]

           *       *       *       *       *       *       *

  [(d) Whenever the target of the electronic surveillance is a
foreign power, as defined in section 101(a) (1), (2), or (3),
and each of the facilities or places at which the surveillance
is directed is owned, leased, or exclusively used by that
foreign power, the order used need not contain the information
required by subparagraphs (C), (D), and (F) of subsection
(c)(1), but shall generally describe the information sought,
the communications or activities to be subjected to the
surveillance, and the type of electronic surveillance involved,
including whether physical entry is required.]
  [(e)] (d)(1) An order issued under this section may approve
an electronic surveillance [for the period necessary to achieve
its purpose, or for ninety days, whichever is less, except that
(A) an order under this section shall approve an electronic
surveillance targeted against a foreign power, as defined in
section 101(a), (1), (2), or (3), for the period specified in
the application or for one year, whichever is less, and (B) an
order under this Act for a surveillance targeted against an
agent of a foreign power who is not a United States person may
be for the period specified in the application or for 120 days,
whichever is less.] for a period not to exceed one year.
  (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, except that (A) an
extension of an order under this Act for a surveillance
targeted against a foreign power, a defined in section 101(a)
(5) or (6), or against a foreign power as defined in section
101(a)(4) that is not a United States person, may be for a
period not to exceed one year if the judge finds probable cause
to believe that no communication of any individual United
States person will be acquired during the period, and (B) an
extension of an order under this Act for a surveillance
targeted against an agent of a foreign power who is not a
United States person may be for a period not to exceed 1 year.]
original order for a period not to exceed one year.
  [(f) Notwithstanding any other provision of this title, when
the Attorney General reasonably determines that--
          [(1) 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
          [(2) the factual basis for issuance of an order under
        this title to approve such surveillance exists;
he may authorize the emergency employment of electronic
surveillance if a judge having jurisdiction under section 103
is informed by the Attorney General or his designee at the time
of such authorization that the decision has been made to employ
emergency electronic surveillance and if an application in
accordance with this title is made to that judge as soon as
practicable, but not more than 72 hours after the Attorney
General authorizes such surveillance. If the Attorney General
authorizes such emergency employment of electronic
surveillance, he shall require that the minimization procedures
required by this title for the issuance of a judicial order be
followed. 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 72 hours from
the time of authorization by the Attorney General, 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.]
  (e) Notwithstanding any other provision of this title, the
Attorney General may authorize the emergency employment of
electronic surveillance if the Attorney General--
          (1) determines that 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;
          (2) determines that the factual basis for issuance of
        an order under this title to approve such surveillance
        exists;
          (3) informs a judge having jurisdiction under section
        103 at the time of such authorization that the decision
        has been made to employ emergency electronic
        surveillance; and
          (4) makes an application in accordance with this
        title to a judge having jurisdiction under section 103
        as soon as practicable, but not more than 120 hours
        after the official authorizes such surveillance.
If the Attorney General authorizes such emergency employment of
electronic surveillance, the Attorney General shall require
that the minimization procedures required by this title for the
issuance of a judicial order be followed. 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 120 hours from the time of
authorization by the Attorney General, 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.
  [(g)] (f) Notwithstanding any other provision of this title,
officers, employees, or agents of the United States are
authorized in the normal course of their official duties to
conduct electronic surveillance not targeted against the
communications of any particular person or persons, under
procedures approved by the Attorney General, solely to--
          (1) * * *

           *       *       *       *       *       *       *

  [(h)] (g) Certifications made by the Attorney General
pursuant to section 102(a) and applications made and orders
granted under this title shall be retained for a period of at
least ten years from the date of the certification or
application.
  [(i)] (h) No cause of action shall lie in any court against
any provider of a wire or electronic communication service,
landlord, custodian, or other person (including any officer,
employee, agent, or other specified person thereof) that
furnishes any information, facilities, or technical [assistance
in accordance with a court order or request for emergency
assistance under this Act for electronic surveillance or
physical search.] assistance--
          (1) in accordance with a court order or request for
        emergency assistance under this Act for electronic
        surveillance or physical search; or
          (2) in response to a certification by the Attorney
        General or a designee of the Attorney General seeking
        information, facilities, or technical assistance from
        such person that does not constitute electronic
        surveillance.

                           USE OF INFORMATION

    Sec. 106. (a) * * *

           *       *       *       *       *       *       *

  (i) In circumstances involving the unintentional acquisition
by an electronic, mechanical, or other surveillance device of
the contents of any [radio] 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 located within
the United States, such contents shall be destroyed upon
recognition, unless the Attorney General determines that the
[contents indicates] contents contain significant foreign
intelligence information or indicate a threat of death or
serious bodily harm to any person.
  (j) If an emergency employment of electronic surveillance is
authorized under section [105(e)] 105(d) and a subsequent order
approving the surveillance is not obtained, the judge shall
cause to be served on any United States person named in the
application and on such other United States persons subject to
electronic surveillance as the judge may determine in his
discretion it is in the interest of justice to serve, notice
of--
          (1) * * *

           *       *       *       *       *       *       *

  (k)(1) * * *
  (2) Coordination authorized under paragraph (1) shall not
preclude the certification required by section [104(a)(7)(B)]
104(a)(6)(B) or the entry of an order under section 105.

           *       *       *       *       *       *       *


                        CONGRESSIONAL OVERSIGHT

    Sec. 108. (a)(1) * * *
          (2) Each report under the first sentence of paragraph
        (1) shall include a description of--
                  (A) * * *
                  (B) each criminal case in which information
                acquired under this Act has been authorized for
                use at trial during the period covered by such
                report; [and]
                  (C) the total number of emergency employments
                of electronic surveillance under section
                [105(f)] 105(e) and the total number of
                subsequent orders approving or denying such
                electronic surveillance[.]; and
                  (D) the authority under which the electronic
                surveillance is conducted.
          (3) Each report submitted under this subsection shall
        include reports on electronic surveillance conducted
        without a court order.

           *       *       *       *       *       *       *


                    AUTHORIZATION DURING TIME OF WAR

    Sec. 111. 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 a period not to exceed
fifteen calendar days following a declaration of war by the
Congress.] for a period not to exceed 60 days following an
armed attack against the territory of the United States if the
President submits to the Permanent Select Committee on
Intelligence of the House of Representatives and the Select
Committee on Intelligence of the Senate notification of the
authorization under this section.--

   AUTHORIZATION FOLLOWING A TERRORIST ATTACK UPON THE UNITED STATES

  Sec. 112. (a) In General.--Notwithstanding any other
provision of law, but subject to the provisions of this
section, the President, acting through the Attorney General,
may authorize electronic surveillance without an order under
this title to acquire foreign intelligence information for a
period not to exceed 45 days following a terrorist attack
against the United States if the President submits a
notification to the congressional intelligence committees and a
judge having jurisdiction under section 103 that--
          (1) the United States has been the subject of a
        terrorist attack; and
          (2) identifies the terrorist organizations or
        affiliates of terrorist organizations believed to be
        responsible for the terrorist attack.
  (b) Subsequent Certifications.--At the end of the 45-day
period described in subsection (a), and every 45 days
thereafter, the President may submit a subsequent certification
to the congressional intelligence committees and a judge having
jurisdiction under section 103 that the circumstances of the
terrorist attack for which the President submitted a
certification under subsection (a) require the President to
continue the authorization of electronic surveillance under
this section for an additional 45 days. The President shall be
authorized to conduct electronic surveillance under this
section for an additional 45 days after each such subsequent
certification.
  (c) Electronic Surveillance of Individuals.--The President,
or an official designated by the President to authorize
electronic surveillance, may only conduct electronic
surveillance of a person under this section if the President or
such official determines that--
          (1) there is a reasonable belief that such person is
        communicating with a terrorist organization or an
        affiliate of a terrorist organization that is
        reasonably believed to be responsible for the terrorist
        attack; and
          (2) the information obtained from the electronic
        surveillance may be foreign intelligence information.
  (d) Minimization Procedures.--The President may not authorize
electronic surveillance under this section until the Attorney
General approves minimization procedures for electronic
surveillance conducted under this section.
  (e) United States Persons.--Notwithstanding subsection (b),
the President may not authorize electronic surveillance of a
United States person under this section without an order under
this title for a period of more than 90 days unless the
President, acting through the Attorney General, submits a
certification to the congressional intelligence committees
that--
          (1) the continued electronic surveillance of the
        United States person is vital to the national security
        of the United States;
          (2) describes the circumstances that have prevented
        the Attorney General from obtaining an order under this
        title for continued surveillance;
          (3) describes the reasons for believing the United
        States person is affiliated with or in communication
        with a terrorist organization or affiliate of a
        terrorist organization that is reasonably believed to
        be responsible for the terrorist attack; and
          (4) describes the foreign intelligence information
        derived from the electronic surveillance conducted
        under this section.
  (f) Use of Information.--Information obtained pursuant to
electronic surveillance under this subsection may be used to
obtain an order authorizing subsequent electronic surveillance
under this title.
  (g) Reports.--Not later than 14 days after the date on which
the President submits a certification under subsection (a), and
every 30 days thereafter until the President ceases to
authorize electronic surveillance under subsection (a) or (b),
the President shall submit to the congressional intelligence
committees a report on the electronic surveillance conducted
under this section, including--
          (1) a description of each target of electronic
        surveillance under this section; and
          (2) the basis for believing that each target is in
        communication with a terrorist organization or an
        affiliate of a terrorist organization.
  (h) Congressional Intelligence Committees Defined.--In this
section, the term ``congressional intelligence committees''
means the Permanent Select Committee on Intelligence of the
House of Representatives and the Select Committee on
Intelligence of the Senate.

                  AUTHORIZATION DUE TO IMMINENT THREAT

  Sec. 113. (a) In General.--Notwithstanding any other
provision of law, but subject to the provisions of this
section, the President, acting through the Attorney General,
may authorize electronic surveillance without an order under
this title to acquire foreign intelligence information for a
period not to exceed 90 days if the President submits to the
congressional leadership, the congressional intelligence
committees, and the Foreign Intelligence Surveillance Court a
written notification that the President has determined that
there exists an imminent threat of attack likely to cause
death, serious injury, or substantial economic damage to the
United States. Such notification--
          (1) shall be submitted as soon as practicable, but in
        no case later than 5 days after the date on which the
        President authorizes electronic surveillance under this
        section;
          (2) shall specify the entity responsible for the
        threat and any affiliates of the entity;
          (3) shall state the reason to believe that the threat
        of imminent attack exists;
          (4) shall state the reason the President needs
        broader authority to conduct electronic surveillance in
        the United States as a result of the threat of imminent
        attack;
          (5) shall include a description of the foreign
        intelligence information that will be collected and the
        means that will be used to collect such foreign
        intelligence information; and
          (6) may be submitted in classified form.
  (b) Subsequent Certifications.--At the end of the 90-day
period described in subsection (a), and every 90 days
thereafter, the President may submit a subsequent written
notification to the congressional leadership, the congressional
intelligence committees, the other relevant committees, and the
Foreign Intelligence Surveillance Court that the circumstances
of the threat for which the President submitted a written
notification under subsection (a) require the President to
continue the authorization of electronic surveillance under
this section for an additional 90 days. The President shall be
authorized to conduct electronic surveillance under this
section for an additional 90 days after each such subsequent
written notification.
  (c) Electronic Surveillance of Individuals.--The President,
or an official designated by the President to authorize
electronic surveillance, may only conduct electronic
surveillance of a person under this section if the President or
such official determines that--
          (1) there is a reasonable belief that such person is
        communicating with an entity or an affiliate of an
        entity that is reasonably believed to be responsible
        for imminent threat of attack; and
          (2) the information obtained from the electronic
        surveillance may be foreign intelligence information.
  (d) Minimization Procedures.--The President may not authorize
electronic surveillance under this section until the Attorney
General approves minimization procedures for electronic
surveillance conducted under this section.
  (e) United States Persons.--Notwithstanding subsections (a)
and (b), the President may not authorize electronic
surveillance of a United States person under this section
without an order under this title for a period of more than 60
days unless the President, acting through the Attorney General,
submits a certification to the congressional intelligence
committees that--
          (1) the continued electronic surveillance of the
        United States person is vital to the national security
        of the United States;
          (2) describes the circumstances that have prevented
        the Attorney General from obtaining an order under this
        title for continued surveillance;
          (3) describes the reasons for believing the United
        States person is affiliated with or in communication
        with an entity or an affiliate of an entity that is
        reasonably believed to be responsible for imminent
        threat of attack; and
          (4) describes the foreign intelligence information
        derived from the electronic surveillance conducted
        under this section.
  (f) Use of Information.--Information obtained pursuant to
electronic surveillance under this subsection may be used to
obtain an order authorizing subsequent electronic surveillance
under this title.
  (g) Definitions.--In this section:
          (1) Congressional intelligence committees.--The term
        ``congressional intelligence committees'' means the
        Permanent Select Committee on Intelligence of the House
        of Representatives and the Select Committee on
        Intelligence of the Senate.
          (2) Congressional leadership.--The term
        ``congressional leadership'' means the Speaker and
        minority leader of the House of Representatives and the
        majority leader and minority leader of the Senate.
          (3) Foreign intelligence surveillance court.--The
        term ``Foreign Intelligence Surveillance Court'' means
        the court established under section 103(a).
          (4) Other relevant committees.--The term ``other
        relevant committees'' means the Committees on
        Appropriations, the Committees on Armed Services, and
        the Committees on the Judiciary of the House of
        Representatives and the Senate.

           *       *       *       *       *       *       *


   TITLE III--PHYSICAL SEARCHES WITHIN THE UNITED STATES FOR FOREIGN
                         INTELLIGENCE PURPOSES

                              DEFINITIONS

  Sec. 301. As used in this title:
          (1) * * *

           *       *       *       *       *       *       *

          (5) ``Physical search'' means any physical intrusion
        within the United States into premises or property
        (including examination of the interior of property by
        technical means) that is intended to result in a
        seizure, reproduction, inspection, 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 (A)
        ``electronic surveillance'', as defined in section
        101(f) of this [Act, or (B)] Act, (B) activities
        described in section 102(b) of this Act, or (C) the
        acquisition by the United States Government of foreign
        intelligence information from international or foreign
        communications, or foreign intelligence activities
        conducted in accordance with otherwise applicable
        Federal law involving a foreign electronic
        communications system, utilizing a means other than
        electronic surveillance as defined in section 101(f) of
        this Act.

           *       *       *       *       *       *       *


                    AUTHORIZATION DURING TIME OF WAR

  Sec. 309. Notwithstanding any other provision of law, the
President, through the Attorney General, may authorize physical
searches without a court order under this title to acquire
foreign intelligence information [for a period not to exceed 15
calendar days following a declaration of war by the Congress.]
for a period not to exceed 60 days following an armed attack
against the territory of the United States if the President
submits to the Permanent Select Committee on Intelligence of
the House of Representatives and the Select Committee on
Intelligence of the Senate notification of the authorization
under this section.

           *       *       *       *       *       *       *

                              ----------


NATIONAL SECURITY ACT OF 1947

           *       *       *       *       *       *       *


          TITLE V--ACCOUNTABILITY FOR INTELLIGENCE ACTIVITIES

               GENERAL CONGRESSIONAL OVERSIGHT PROVISIONS

  Sec. 501. (a) * * *

           *       *       *       *       *       *       *

  (f) The Chair of each of the congressional intelligence
committees, in consultation with the ranking member of the
committee for which the person is Chair, may inform--
          (1) on a bipartisan basis, all members or any
        individual members of such committee, and
          (2) any essential staff of such committee,
of a report submitted under subsection (a)(1) or subsection (b)
as such Chair considers necessary.
  [(f)] (g) As used in this section, the term ``intelligence
activities'' includes covert actions as defined in section
503(e), and includes financial intelligence activities.

     REPORTING OF INTELLIGENCE ACTIVITIES OTHER THAN COVERT ACTIONS

  Sec. 502. (a) * * *

           *       *       *       *       *       *       *

  (d) Informing of Committee Members.--The Chair of each of the
congressional intelligence committees, in consultation with the
ranking member of the committee for which the person is Chair,
may inform--
          (1) on a bipartisan basis, all members or any
        individual members of such committee, and
          (2) any essential staff of such committee,
of a report submitted under subsection (a) as such Chair
considers necessary.

         PRESIDENTIAL APPROVAL AND REPORTING OF COVERT ACTIONS

  Sec. 503. (a) * * *

           *       *       *       *       *       *       *

  (g) The Chair of each of the congressional intelligence
committees, in consultation with the ranking member of the
committee for which the person is Chair, may inform--
          (1) on a bipartisan basis, all members or any
        individual members of such committee, and
          (2) any essential staff of such committee,
of a report submitted under subsection (b), (c), or (d) as such
Chair considers necessary.

           *       *       *       *       *       *       *


                             MINORITY VIEWS

    All nine Democratic Members of the House Permanent Select
Committee on Intelligence support strong, modem, and lawful
tools to fight terrorism. We want to intercept their
communications, track their whereabouts, and disrupt their
plans. We stand ready and willing to respond to any reasonable
request from the Administration for additional legal tools for
the National Security Agency (NSA). But we believe that how we
use these tools is a measure of who we are as a nation--a
yardstick by which the rest of the world will view our
commitment to the values upon which this country was founded.
Those who founded our country created a system of checks and
balances and we believe their vision should be preserved.
Congress should not give any President unchecked authority to
eavesdrop on Americans.
     The Foreign Intelligence Surveillance Act (FISA) is a
modern, flexible statute that allows the government to conduct
electronic surveillance on Americans. As the record in our
Committee has made clear, FISA is a vital tool for the Federal
Bureau of Investigation (FBI) and the NSA in their
investigations of terrorism and espionage.
    There is no evidence in the record of our Committee that
FISA must be rewritten in favor of a new regime permitting
broad warrantless surveillance of Americans. Yet H.R. 5825 does
exactly that.
    We have heard the claim that the law is ``outmoded,'' but
FISA has been amended and modernized numerous times over the
past 28 years, including most recently in the reauthorization
of the USA PATRIOT Act in March. The Congressional Research
Service (CRS) provided a report to this Committee showing that
51 separate provisions in twelve different bills have amended
FISA--many of those in just the past five years.
    Given that H.R. 5825 is intended to address concerns over
the President's domestic surveillance program, it is stunning
how little oversight this Committee has actually conducted and
how little information we have about the program.
    For months we have asked that Committee members meet with
the NSA Inspector General, members of the Foreign Intelligence
Surveillance Court, the Department of Justice (DOJ), the FBI,
and the Central Intelligence Agency (CIA) to learn whether the
program has helped stop any terrorist attacks. The Majority
denied each of those requests. We have asked for a copy of the
President's Authorization for the program and for other core
documents. The Administration has refused to produce them. In
June, the Ranking Member asked the Chairman to join her in
sending a letter to the NSA Inspector General asking to review
his seven reports on the program. The Chairman did not agree to
send that letter.
    We have received occasional briefings from NSA officials,
but none of these briefings have been on the record, on the
purported theory that we could not find a single cleared
stenographer. This problem persisted despite the fact that
thousands of Executive Branch officials have been briefed into
this program.
    The Chairman committed in public to hold hearings with
Administration officials to help determine what changes to
FISA, if any, were needed to accommodate the President's
program. We had hoped to have Attorney General Gonzales
testify. But no such hearings were held. In fact, the Committee
never even extended an invitation to the Attorney General.
    H.R. 5825 is a dangerously broad bill that would turn FISA
on its head by making warrantless surveillance the rule rather
than the exception. It does so by altering the definition of
key terms within FISA that govern what forms of surveillance
require a warrant and by carving out giant loopholes that give
the Administration broad powers to conduct all types of
surveillance without a warrant.
    H.R. 5825 proposes sweeping alterations to the definition
of ``electronic surveillance'' that would drastically shrink
the universe of communications for which a warrant is required.
It radically expands the definition of ``agent of a foreign
power.'' It seriously erodes the protections against
dissemination of information collected on U.S. persons. And it
offers a new definition of ``surveillance device'' that would
allow the government to conduct unregulated data retention and
mining operations on all the information collected from the
vast warrantless surveillance that this bill authorizes.
    In other sections, H.R. 5825 grants the Administration the
authority, under poorly defined circumstances, to conduct
surveillance without a warrant. The bill grants the government
the power to conduct unlimited surveillance in the event of an
``armed attack'' and in the event of a ``terrorist attack.''
Though neither of these terms is defined anywhere in the law.
Therefore, these sweeping exceptions give the Executive Branch
carte blanche authority to conduct surveillance as it sees fit.
    Further, the Majority offered an Amendment in the Nature of
a Substitute to H.R. 5825 to create yet another loophole that
would allow the same sort of warrantless surveillance when the
United States is facing an ``imminent threat of attack.'' Here,
again, the terms are so loosely defined that the potential for
abusive interpretation threatens to swallow the statute whole.
    In sum, H.R. 5825's vague definitions and broad loopholes
allow the Executive Branch to conduct electronic surveillance
of telephone calls and e-mail in the United States without
court orders and without meaningful oversight.
    The Minority offered several amendments to address these
concerns; sadly, all were rejected during markup on a party-
line vote.
    First, Representatives Harman and Boswell offered an
amendment that would have substituted H.R. 5825 with H.R. 5371,
the LISTEN Act (Lawful Intelligence and Surveillance of
Terrorists in an Emergency by the NSA). The strength of the
LISTEN Act is that it only fixes what is broken.
    This amendment would have made clear that FISA is the
exclusive means by which the Executive Branch may conduct
electronic surveillance of Americans for intelligence purposes.
It would have reiterated that the Authorization for the Use of
Military Force (AUMF) did not authorize the President's
domestic surveillance program; it did not repeal FISA. It would
have invited the President and the Attorney General to tell us
what is wrong with the FISA process so that we can fix it. It
would have also required the President to identify any
additional resources needed to help the NSA and the DOJ fight
the war on terror using FISA authorities. And it would have
pledged that Congress would fund additional attorneys, analysts
and information technology upgrades to make FISA more
efficient.
    An amendment offered by Representatives Eshoo and Holt
would have altered FISA's definition of ``electronic
surveillance'' to make the statute technology neutral. Making
this fix would require changing only a few words in the statute
to eliminate the distinction between wire and radio
communications. Unlike H.R. 5825, the tailored fix offered by
Representatives Eshoo and Holt would have updated the law
without gutting FISA.
    An amendment offered by Representatives Holt and
Ruppersberger would have reaffirmed the principle that FISA is
the exclusive means for conducting electronic surveillance in
the United States. This amendment would have ensured that the
President would be held to the rules--even the permissive rules
of H.R. 5825. As it stands today, if H.R. 5825 passes, the
President can avail himself of its loose rules when he wishes
or circumvent those loose rules if he so chooses.
    Representative Reyes offered an amendment finding that the
AUMF does not constitute legal authorization for electronic
surveillance outside of FISA. We do not believe that any
Member's vote on the AUMF was a vote for warrantless
surveillance of law-abiding citizens in contravention of the
Fourth Amendment of the Constitution.
    Representative Hastings offered an amendment that would
have clarified existing law by reaffirming that FISA does not
require a warrant to monitor telephone calls where all
participants are located outside the United States. This
amendment would have allowed free surveillance of foreign-to-
foreign communications but would have left the other critical
FISA provisions intact. There is no reasonable explanation why
the Majority would oppose this provision.
    Protecting America from terrorism is our highest duty. We
need to get serious about the task. It is election season, and
a debate on surveillance brings political benefits to some. But
that is a terrible reason to legislate. We do not want to
suspend our 217-year-old Constitution, whether for political
reasons or for no reason at all.
                                   Jane Harman.
                                           Ranking Democrat
                                   Silvestre Reyes.
                                   Bud Cramer.
                                   Rush Holt.
                                   John F. Tierney.
                                   Alcee L. Hastings.
                                   Leonard L. Boswell.
                                   Anna Eshoo.
                                   C.A. Dutch Ruppersberger.

                            ADDITIONAL VIEWS

    I have joined my Democratic colleagues in signing the
minority views as they reflect the ``mark-up'' session's events
and general overview of the situation surrounding the meeting.
It is instructive, I believe, to make some brief additional
observations.
    The Administration has yet to articulate on record specific
justifications for arguing that executive powers broader than
those within the Foreign Intelligence Surveillance Act would be
necessary in order to intercept communications under the so-
called ``President's Program.'' As more than one witness
pointed out in the course of related hearings, the President
and his Administration assert only broadly that there may be
some issue with respect to complying in a timely manner with
emergency provisions for seeking a warrant. Any problems in
this regard seem self-induced as a result of bureaucratic
processes established within the originating agency or the
Department of Justice, and not from any delay in the Foreign
Intelligence Surveillance Court. Additional staff or revised
procedures could address the matter without statutory
amendment. Nevertheless, the LISTEN Act, proposed by
Representative Harman and co-sponsored by 64 of other members,
including the minority HPSCI members, would make clear
Congress' willingness to make additional resources available as
requested.
    There was some assertion that agencies were interpreting
the law to indicate that they felt certain foreign-to-foreign
communications routed in any way through domestic
infrastructure might necessitate a warrant, thus burdening the
process. Experts have indicated that a clear reading of
existing statutory language would obviate such concerns as it
addresses intercepts of communications from and to foreign
persons. A simple clarification of the statute (offered as an
amendment by Representative Hastings of Florida) could resolve
any lingering doubts, and Senator Feinstein's bill even goes so
far as to clarify it statutorily.
    A wholesale revision of the FISA, especially one so radical
as that proposed in Representative Wilson's bill, is not
necessary to address the only concerns of record articulated by
the Administration. It would be reasonable for the public to
then wonder whether the Administration is being forthcoming in
its real purposes for having surreptitiously conducted the
``President's Program'' for so long or for seeking new
legislation. Is there more to the Executive's intentions under
such broad authority, or, as some have speculated, are those
within the Administration who have chafed under what they
perceived as a loss of executive authority under FISA simply
asserting a point here? With respect to the latter, we should
note that the United States Supreme Court has recently made it
abundantly clear that when Congress has spoken by law on a
matter within its purview, the Executive is not at liberty
simply to controvert Congress' intentions unilaterally.
Congress should not be an accomplice to a diminution of its
rightful authority by passing unnecessarily broad legislation
absent specific evidence of its necessity for the nation's
security. That burden has not been met in this instance. The
Executive, under FISA, has ample authority to intercept
terrorists' communications as appropriate to protect the
country, and a Congress willing--as shown over time and most
recently since 9/11 via the PATRIOT Act--to amend FISA if
necessary to resolve clearly articulated needs.
                                                      John Tierney.