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14 February 2008
Related:
s2248.pdf + Senate Bill Greases Unwarranted Spying February 14, 2008 s2248-report.pdf + Senate Report Greases Unwarranted Spying February 14, 2008
[110th CONGRESS House Bills]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: h3773eh.txt]
[Engrossed in House]
110th CONGRESS
1st Session
H. R. 3773
_______________________________________________________________________
AN ACT
To amend the Foreign Intelligence Surveillance Act of 1978 to establish
a procedure for authorizing certain acquisitions of foreign
intelligence, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Responsible
Electronic Surveillance That is Overseen, Reviewed, and Effective Act
of 2007'' or ``RESTORE Act of 2007''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Clarification of electronic surveillance of non-United States
persons outside the United States.
Sec. 3. Additional authorization of acquisitions of communications of
non-United States persons located outside
the United States who may be communicating
with persons inside the United States.
Sec. 4. Emergency authorization of acquisitions of communications of
non-United States persons located outside
the United States who may be communicating
with persons inside the United States.
Sec. 5. Oversight of acquisitions of communications of non-United
States persons located outside of the
United States who may be communicating with
persons inside the United States.
Sec. 6. Dissemination of communications of non-United States persons
located outside of the United States who
may be communicating with persons inside
the United States.
Sec. 7. Foreign Intelligence Surveillance Court en banc.
Sec. 8. Foreign Intelligence Surveillance Court matters.
Sec. 9. Reiteration of FISA as the exclusive means by which electronic
surveillance may be conducted for gathering
foreign intelligence information.
Sec. 10. Enhancement of electronic surveillance authority in wartime
and other collection.
Sec. 11. Audit of warrantless surveillance programs.
Sec. 12. Record-keeping system on acquisition of communications of
United States persons.
Sec. 13. Authorization for increased resources relating to foreign
intelligence surveillance.
Sec. 14. Document management system for applications for orders
approving electronic surveillance.
Sec. 15. Training of intelligence community personnel in foreign
intelligence collection matters.
Sec. 16. Information for Congress on the terrorist surveillance program
and similar programs.
Sec. 17. Technical and conforming amendments.
Sec. 18. Sunset; transition procedures.
Sec. 19. Certification to communications service providers that
acquisitions are authorized under FISA.
Sec. 20. Statute of limitations.
Sec. 21. No rights under the RESTORE Act for undocumented aliens.
Sec. 22. Surveillance to protect the United States.
SEC. 2. CLARIFICATION OF ELECTRONIC SURVEILLANCE OF NON-UNITED STATES
PERSONS OUTSIDE THE UNITED STATES.
Section 105A of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et seq.) is amended to read as follows:
``clarification of electronic surveillance of non-united states persons
outside the united states
``Sec. 105A. (a) Foreign to Foreign Communications.--
``(1) In general.--Notwithstanding any other provision of
this Act, a court order is not required for electronic
surveillance directed at the acquisition of the contents of any
communication between persons that are not known to be United
States persons and are reasonably believed to be located
outside the United States for the purpose of collecting foreign
intelligence information, without respect to whether the
communication passes through the United States or the
surveillance device is located within the United States.
``(2) Treatment of inadvertent interceptions.--If
electronic surveillance referred to in paragraph (1)
inadvertently collects a communication in which at least one
party to the communication is located inside the United States
or is a United States person, the contents of such
communication shall be handled in accordance with minimization
procedures adopted by the Attorney General 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 7 days unless a court order
under section 105 is obtained or unless the Attorney General
determines that the information indicates a threat of death or
serious bodily harm to any person.
``(b) Communications of Non-United States Persons Outside of the
United States.--Notwithstanding any other provision of this Act other
than subsection (a), electronic surveillance that is directed at the
acquisition of the communications of a person that is reasonably
believed to be located outside the United States and not a United
States person for the purpose of collecting foreign intelligence
information (as defined in paragraph (1) or (2)(A) of section 101(e))
by targeting that person shall be conducted pursuant to--
``(1) an order approved in accordance with section 105 or
105B; or
``(2) an emergency authorization in accordance with section
105 or 105C.''.
SEC. 3. ADDITIONAL AUTHORIZATION OF ACQUISITIONS OF COMMUNICATIONS OF
NON-UNITED STATES PERSONS LOCATED OUTSIDE THE UNITED
STATES WHO MAY BE COMMUNICATING WITH PERSONS INSIDE THE
UNITED STATES.
Section 105B of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et seq.) is amended to read as follows:
``additional authorization of acquisitions of communications of non-
united states persons located outside the united states who may be
communicating with persons inside the united states
``Sec. 105B. (a) In General.--Notwithstanding any other provision
of this Act, the Director of National Intelligence and the Attorney
General may jointly apply to a judge of the court established under
section 103(a) for an ex parte order, or the extension of an order,
authorizing for a period of up to one year the acquisition of
communications of persons that are reasonably believed to be located
outside the United States and not United States persons for the purpose
of collecting foreign intelligence information (as defined in paragraph
(1) or (2)(A) of section 101(e)) by targeting those persons.
``(b) Application Inclusions.--An application under subsection (a)
shall include--
``(1) a certification by the Director of National
Intelligence and the Attorney General that--
``(A) the targets of the acquisition of foreign
intelligence information under this section are persons
reasonably believed to be located outside the United
States who may be communicating with persons inside the
United States;
``(B) the targets of the acquisition are reasonably
believed to be persons that are not United States
persons;
``(C) the acquisition involves obtaining the
foreign intelligence information from, or with the
assistance of, a communications service provider or
custodian, or an officer, employee, or agent of such
service provider or custodian, who has authorized
access to the communications to be acquired, either as
they are transmitted or while they are stored, or
equipment that is being or may be used to transmit or
store such communications; and
``(D) a significant purpose of the acquisition is
to obtain foreign intelligence information (as defined
in paragraph (1) or (2)(A) of section 101(e)); and
``(2) a description of--
``(A) the procedures that will be used by the
Director of National Intelligence and the Attorney
General during the duration of the order to determine
that there is a reasonable belief that the persons that
are the targets of the acquisition are located outside
the United States and not United States persons;
``(B) the nature of the information sought,
including the identity of any foreign power against
whom the acquisition will be directed;
``(C) minimization procedures that meet the
definition of minimization procedures under section
101(h) to be used with respect to such acquisition; and
``(D)(i) the guidelines that will be used to ensure
that an application is filed under section 104, if
otherwise required by this Act, when a significant
purpose of an acquisition is to acquire the
communications of a specific United States person
reasonably believed to be located in the United States;
and
``(ii) the criteria for determining if such
a significant purpose exists, which shall
require consideration of whether--
``(I) the department or agency of
the Federal Government conducting the
acquisition has made an inquiry to
another department or agency of the
Federal Government to gather
information on the specific United
States person;
``(II) the department or agency of
the Federal Government conducting the
acquisition has provided information
that identifies the specific United
States person to another department or
agency of the Federal Government;
``(III) the department or agency of
the Federal Government conducting the
acquisition determines that the
specific United States person has been
the subject of ongoing interest or
repeated investigation by a department
or agency of the Federal Government;
and
``(IV) the specific United States
person is a natural person.
``(c) Specific Place Not Required.--An application under subsection
(a) is not required to identify the specific facilities, places,
premises, or property at which the acquisition of foreign intelligence
information will be directed.
``(d) Review of Application; Appeals.--
``(1) Review of application.--Not later than 15 days after
a judge receives an application under subsection (a), the judge
shall review such application and shall approve the application
if the judge finds that--
``(A) the proposed procedures referred to in
subsection (b)(2)(A) are reasonably designed to
determine whether the targets of the acquisition are
located outside the United States and not United States
persons;
``(B) the proposed minimization procedures referred
to in subsection (b)(2)(C) meet the definition of
minimization procedures under section 101(h); and
``(C)(i) the guidelines referred to in subsection
(b)(2)(D) are reasonably designed to ensure that an
application is filed under section 104, if otherwise
required by this Act, when a significant purpose of an
acquisition is to acquire the communications of a
specific United States person reasonably believed to be
located in the United States; and
``(ii) the criteria for determining if such
a significant purpose exists require
consideration of whether--
``(I) the department or agency of
the Federal Government conducting the
acquisition has made an inquiry to
another department or agency of the
Federal Government to gather
information on the specific United
States person;
``(II) the department or agency of
the Federal Government conducting the
acquisition has provided information
that identifies the specific United
States person to another department or
agency of the Federal Government;
``(III) the department or agency of
the Federal Government conducting the
acquisition determines that the
specific United States person has been
the subject of ongoing interest or
repeated investigation by a department
or agency of the Federal Government;
and
``(IV) the specific United States
person is a natural person.
``(2) Temporary order; appeals.--
``(A) Temporary order.--A judge denying an
application under paragraph (1) may, at the application
of the United States, issue a temporary order to
authorize an acquisition under section 105B in
accordance with the application submitted under
subsection (a) during the pendency of any appeal of the
denial of such application.
``(B) Appeals.--The United States may appeal the
denial of an application for an order under paragraph
(1) or a temporary order under subparagraph (A) in
accordance with section 103.
``(e) Order.--
``(1) In general.--A judge approving an application under
subsection (d) shall issue an order--
``(A) authorizing the acquisition of the contents
of the communications as requested, or as modified by
the judge;
``(B) requiring the communications service provider
or custodian, or officer, employee, or agent of such
service provider or custodian, who has authorized
access to the information, facilities, or technical
assistance necessary to accomplish the acquisition to
provide such information, facilities, or technical
assistance necessary to accomplish the acquisition and
to produce a minimum of interference with the services
that provider, custodian, officer, employee, or agent
is providing the target of the acquisition;
``(C) requiring such communications service
provider, custodian, officer, employee, or agent, upon
the request of the applicant, to maintain under
security procedures approved by the Attorney General
and the Director of National Intelligence any records
concerning the acquisition or the aid furnished;
``(D) directing the Federal Government to--
``(i) compensate, at the prevailing rate, a
person for providing information, facilities,
or assistance pursuant to such order;
``(ii) provide a copy of the portion of the
order directing the person to comply with the
order to such person; and
``(iii) provide a certification stating
that the acquisition is authorized under this
section and that all requirements of this
section have been met; and
``(E) directing the applicant to follow--
``(i) the procedures referred to in
subsection (b)(2)(A) as proposed or as modified
by the judge;
``(ii) the minimization procedures referred
to in subsection (b)(2)(C) as proposed or as
modified by the judge; and
``(iii) the guidelines referred to in
subsection (b)(2)(D) as proposed or as modified
by the judge.
``(2) Failure to comply.--If a person fails to comply with
an order issued under paragraph (1), the Attorney General may
invoke the aid of the court established under section 103(a) to
compel compliance with the order. Failure to obey an order of
the court may be punished by the court as contempt of court.
Any process under this section may be served in any judicial
district in which the person may be found.
``(3) Liability of order.--Notwithstanding any other law,
no cause of action shall lie in any court against any person
for providing any information, facilities, or assistance in
accordance with an order issued under this subsection.
``(4) Retention of order.--The Director of National
Intelligence and the court established under subsection 103(a)
shall retain an order issued under this section for a period of
not less than 10 years from the date on which such order is
issued.
``(5) Assessment of compliance with court order.--At or
before the end of the period of time for which an acquisition
is approved by an order or an extension under this section, the
court established under section 103(a) shall, not less
frequently than once each quarter, assess compliance with the
procedures and guidelines referred to in paragraph (1)(E) and
review the circumstances under which information concerning
United States persons was acquired, retained, or
disseminated.''.
SEC. 4. EMERGENCY AUTHORIZATION OF ACQUISITIONS OF COMMUNICATIONS OF
NON-UNITED STATES PERSONS LOCATED OUTSIDE THE UNITED
STATES WHO MAY BE COMMUNICATING WITH PERSONS INSIDE THE
UNITED STATES.
Section 105C of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et seq.) is amended to read as follows:
``emergency authorization of acquisitions of communications of non-
united states persons located outside the united states who may be
communicating with persons inside the united states
``Sec. 105C. (a) Application After Emergency Authorization.--As
soon as is practicable, but not more than 7 days after the Director of
National Intelligence and the Attorney General authorize an acquisition
under this section, an application for an order authorizing the
acquisition in accordance with section 105B shall be submitted to the
judge referred to in subsection (b)(2) of this section for approval of
the acquisition in accordance with section 105B.
``(b) Emergency Authorization.--Notwithstanding any other provision
of this Act, the Director of National Intelligence and the Attorney
General may jointly authorize the emergency acquisition of foreign
intelligence information (as defined in paragraph (1) or (2)(A) of
section 101(e)) for a period of not more than 45 days if--
``(1) the Director of National Intelligence and the
Attorney General jointly determine that--
``(A) an emergency situation exists with respect to
an authorization for an acquisition under section 105B
before an order approving the acquisition under such
section can with due diligence be obtained;
``(B) the targets of the acquisition of foreign
intelligence information under this section are persons
reasonably believed to be located outside the United
States who may be communicating with persons inside the
United States;
``(C) the targets of the acquisition are reasonably
believed to be persons that are not United States
persons;
``(D) there are procedures in place that will be
used by the Director of National Intelligence and the
Attorney General during the duration of the
authorization to determine if there is a reasonable
belief that the persons that are the targets of the
acquisition are located outside the United States and
not United States persons;
``(E) the acquisition involves obtaining the
foreign intelligence information from, or with the
assistance of, a communications service provider or
custodian, or an officer, employee, or agent of such
service provider or custodian, who has authorized
access to the communications to be acquired, either as
they are transmitted or while they are stored, or
equipment that is being or may be used to transmit or
store such communications;
``(F) a significant purpose of the acquisition is
to obtain foreign intelligence information (as defined
in paragraph (1) or (2)(A) of section 101(e));
``(G) minimization procedures to be used with
respect to such acquisition activity meet the
definition of minimization procedures under section
101(h); and
``(H)(i) there are guidelines that will be used to
ensure that an application is filed under section 104,
if otherwise required by this Act, when a significant
purpose of an acquisition is to acquire the
communications of a specific United States person
reasonably believed to be located in the United States;
and
``(ii) the criteria for determining if such
a significant purpose exists require
consideration of whether--
``(I) the department or agency of
the Federal Government conducting the
acquisition has made an inquiry to
another department or agency of the
Federal Government to gather
information on the specific United
States person;
``(II) the department or agency of
the Federal Government conducting the
acquisition has provided information
that identifies the specific United
States person to another department or
agency of the Federal Government;
``(III) the department or agency of
the Federal Government conducting the
acquisition determines that the
specific United States person has been
the subject of ongoing interest or
repeated investigation by a department
or agency of the Federal Government;
and
``(IV) the specific United States
person is a natural person.
``(2) the Director of National Intelligence and the
Attorney General, or their designees, inform a judge having
jurisdiction to approve an acquisition under section 105B at
the time of the authorization under this section that the
decision has been made to acquire foreign intelligence
information.
``(c) Information, Facilities, and Technical Assistance.--
``(1) Directive.--Pursuant to an authorization of an
acquisition under this section, the Attorney General may direct
a communications service provider, custodian, or an officer,
employee, or agent of such service provider or custodian, who
has the lawful authority to access the information, facilities,
or technical assistance necessary to accomplish such
acquisition to--
``(A) furnish the Attorney General forthwith with
such information, facilities, or technical assistance
in a manner that will protect the secrecy of the
acquisition and produce a minimum of interference with
the services that provider, custodian, officer,
employee, or agent is providing the target of the
acquisition; and
``(B) maintain under security procedures approved
by the Attorney General and the Director of National
Intelligence any records concerning the acquisition or
the aid furnished.
``(2) Parameters; certifications.--The Attorney General
shall provide to any person directed to provide assistance
under paragraph (1) with--
``(A) a document setting forth the parameters of
the directive;
``(B) a certification stating that--
``(i) the emergency authorization has been
issued pursuant to this section;
``(ii) all requirements of this section
been met;
``(iii) a judge has been informed of the
emergency authorization in accordance with
subsection (b)(2); and
``(iv) an application will be submitted in
accordance with subsection (a); and
``(C) a certification that the recipient of the
directive shall be compensated, at the prevailing rate,
for providing information, facilities, or assistance
pursuant to such directive.''.
SEC. 5. OVERSIGHT OF ACQUISITIONS OF COMMUNICATIONS OF NON-UNITED
STATES PERSONS LOCATED OUTSIDE OF THE UNITED STATES WHO
MAY BE COMMUNICATING WITH PERSONS INSIDE THE UNITED
STATES.
The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801
et seq.) is amended by inserting after section 105C the following new
section:
``oversight of acquisitions of communications of non-united states
persons located outside of the united states who may be communicating
with persons inside the united states
``Sec. 105D. (a) Application; Procedures; Orders.--Not later than
7 days after an application is submitted under section 105B(a) or an
order is issued under section 105B(e), the Director of National
Intelligence and the Attorney General shall submit to the appropriate
committees of Congress--
``(1) in the case of an application--
``(A) a copy of the application, including the
certification made under section 105B(b)(1); and
``(B) a description of the primary purpose of the
acquisition for which the application is submitted; and
``(2) in the case of an order, a copy of the order,
including the procedures and guidelines referred to in section
105B(e)(1)(E).
``(b) Regular Audits.--
``(1) Audit.--Not later than 120 days after the date of the
enactment of this section, and every 120 days thereafter until
the expiration of all orders issued under section 105B, the
Inspector General of the Department of Justice shall complete
an audit on the implementation of and compliance with the
procedures and guidelines referred to in section 105B(e)(1)(E)
and shall submit to the appropriate committees of Congress, the
Attorney General, the Director of National Intelligence, and
the court established under section 103(a) the results of such
audit, including, for each order authorizing the acquisition of
foreign intelligence under section 105B--
``(A) the number of targets of an acquisition under
such order that were later determined to be located in
the United States;
``(B) the number of persons located in the United
States whose communications have been acquired under
such order;
``(C) the number and nature of reports disseminated
containing information on a United States person that
was collected under such order; and
``(D) the number of applications submitted for
approval of electronic surveillance under section 104
for targets whose communications were acquired under
such order.
``(2) Report.--Not later than 30 days after the completion
of an audit under paragraph (1), the Attorney General shall
submit to the appropriate committees of Congress and the court
established under section 103(a) a report containing the
results of such audit.
``(c) Compliance Reports.--Not later than 60 days after the date of
the enactment of this section, and every 120 days thereafter until the
expiration of all orders issued under section 105B, the Director of
National Intelligence and the Attorney General shall submit to the
appropriate committees of Congress and the court established under
section 103(a) a report concerning acquisitions under section 105B
during the previous period. Each report submitted under this section
shall include a description of any incidents of non-compliance with an
order issued under section 105B(e), including incidents of non-
compliance by--
``(1) an element of the intelligence community with
procedures referred to in section 105B(e)(1)(E)(i);
``(2) an element of the intelligence community with
minimization procedures referred to in section
105B(e)(1)(E)(ii);
``(3) an element of the intelligence community with
guidelines referred to in section 105B(e)(1)(E)(iii); and
``(4) a person directed to provide information, facilities,
or technical assistance under such order.
``(d) Report on Emergency Authority.--The Director of National
Intelligence and the Attorney General shall annually submit to the
appropriate committees of Congress a report containing the number of
emergency authorizations of acquisitions under section 105C and a
description of any incidents of non-compliance with an emergency
authorization under such section.
``(e) Appropriate Committees of Congress Defined.--In this section,
the term `appropriate committees of Congress' means--
``(1) the Permanent Select Committee on Intelligence of the
House of Representatives;
``(2) the Select Committee on Intelligence of the Senate;
and
``(3) the Committees on the Judiciary of the House of
Representatives and the Senate.''.
SEC. 6. DISSEMINATION OF COMMUNICATIONS OF NON-UNITED STATES PERSONS
LOCATED OUTSIDE OF THE UNITED STATES WHO MAY BE
COMMUNICATING WITH PERSONS INSIDE THE UNITED STATES.
The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801
et seq.) is amended by inserting after section 105D (as added by
section 5) the following new section:
``dissemination of communications of non-united states persons located
outside of the united states who may be communicating with persons
inside the united states
``Sec. 105E. The contents of communications collected under
section 105B or section 105C, and intelligence reports based on such
contents, shall not be disclosed or disseminated with information that
identifies a United States person unless an officer or employee of the
Federal Government whose rate of basic pay is not less than the minimum
rate payable under section 5382 of title 5, United States Code
(relating to rates of pay for the Senior Executive Service) determines
that the identity of the United States person is necessary to--
``(1) understand the foreign intelligence collected under
section 105B or 105C or assess the importance of such
intelligence; and
``(2) protect the national security of the United States,
the citizens, employees, or officers of the United States, or
the members of the United States Armed Forces.''.
SEC. 7. FOREIGN INTELLIGENCE SURVEILLANCE COURT EN BANC.
Section 103 of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1803) is amended by adding at the end the following new
subsection:
``(g) In any case where the court established under subsection (a)
or a judge of such court is required to review a matter under this Act,
the court may, at the discretion of the court, sit en banc to review
such matter and issue any orders related to such matter.''.
SEC. 8. FOREIGN INTELLIGENCE SURVEILLANCE COURT MATTERS.
(a) Authority for Additional Judges.--Section 103(a) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a)) is amended--
(1) by inserting ``(1)'' after ``(a)'';
(2) in paragraph (1) (as so designated)--
(A) by striking ``11'' and inserting ``15''; and
(B) by inserting ``at least'' before ``seven of the
United States judicial circuits''; and
(3) by designating the second sentence as paragraph (3) and
indenting such paragraph, as so designated, two ems from the
left margin.
(b) Consideration of Emergency Applications.--Such section is
further amended by inserting after paragraph (1) (as designated by
subsection (a)(1)) the following new paragraph:
``(2) A judge of the court shall make a determination to approve,
deny, or modify an application submitted pursuant to section 105(f),
section 304(e), or section 403 not later than 24 hours after the
receipt of such application by the court.''.
SEC. 9. REITERATION OF FISA AS THE EXCLUSIVE MEANS BY WHICH ELECTRONIC
SURVEILLANCE MAY BE CONDUCTED FOR GATHERING FOREIGN
INTELLIGENCE INFORMATION.
(a) Exclusive Means.--Notwithstanding any other provision of law,
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.) shall be the exclusive means by which electronic surveillance may
be conducted for the purpose of gathering foreign intelligence
information.
(b) Specific Authorization Required for Exception.--Subsection (a)
shall apply until specific statutory authorization for electronic
surveillance, other than as an amendment to the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), is enacted. Such
specific statutory authorization shall be the only exception to
subsection (a).
SEC. 10. ENHANCEMENT OF ELECTRONIC SURVEILLANCE AUTHORITY IN WARTIME
AND OTHER COLLECTION.
Sections 111, 309, and 404 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1811, 1829, and 1844) are amended
by striking ``Congress'' and inserting ``Congress or an authorization
for the use of military force described in section 2(c)(2) of the War
Powers Resolution (50 U.S.C. 1541(c)(2)) if such authorization contains
a specific authorization for foreign intelligence collection under this
section, or if the Congress is unable to convene because of an attack
upon the United States.''.
SEC. 11. AUDIT OF WARRANTLESS SURVEILLANCE PROGRAMS.
(a) Audit.--Not later than 180 days after the date of the enactment
of this Act, the Inspector General of the Department of Justice shall
complete an audit of all programs of the Federal Government involving
the acquisition of communications conducted without a court order on or
after September 11, 2001, including the Terrorist Surveillance Program
referred to by the President in a radio address on December 17, 2005.
Such audit shall include acquiring all documents relevant to such
programs, including memoranda concerning the legal authority of a
program, authorizations of a program, certifications to
telecommunications carriers, and court orders.
(b) Report.--
(1) In general.--Not later than 30 days after the
completion of the audit under subsection (a), the Inspector
General shall submit to the Permanent Select Committee on
Intelligence and the Committee on the Judiciary of the House of
Representatives and the Select Committee on Intelligence and
the Committee on the Judiciary of the Senate a report
containing the results of such audit, including all documents
acquired pursuant to conducting such audit.
(2) Form.--The report under paragraph (1) shall be
submitted in unclassified form, but may include a classified
annex.
(c) Expedited Security Clearance.--The Director of National
Intelligence shall ensure that the process for the investigation and
adjudication of an application by the Inspector General or the
appropriate staff of the Office of the Inspector General of the
Department of Justice for a security clearance necessary for the
conduct of the audit under subsection (a) is conducted as expeditiously
as possible.
SEC. 12. RECORD-KEEPING SYSTEM ON ACQUISITION OF COMMUNICATIONS OF
UNITED STATES PERSONS.
(a) Record-Keeping System.--The Director of National Intelligence
and the Attorney General shall jointly develop and maintain a record-
keeping system that will keep track of--
(1) the instances where the identity of a United States
person whose communications were acquired was disclosed by an
element of the intelligence community (as defined in section
3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4))
that collected the communications to other departments or
agencies of the United States; and
(2) the departments and agencies of the Federal Government
and persons to whom such identity information was disclosed.
(b) Report.--The Director of National Intelligence and the Attorney
General shall annually submit to the Permanent Select Committee on
Intelligence and the Committee on the Judiciary of the House of
Representatives and the Select Committee on Intelligence and the
Committee on the Judiciary of the Senate a report on the record-keeping
system created under subsection (a), including the number of instances
referred to in paragraph (1).
SEC. 13. AUTHORIZATION FOR INCREASED RESOURCES RELATING TO FOREIGN
INTELLIGENCE SURVEILLANCE.
(a) In General.--There are authorized to be appropriated to the
Department of Justice, for the activities of the Office of the
Inspector General and the appropriate elements of the National Security
Division, and to the National Security Agency such sums as may be
necessary to meet the personnel and information technology demands to
ensure the timely and efficient processing of--
(1) applications and other submissions to the court
established under section 103(a) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1803(a));
(2) the audit and reporting requirements under--
(A) section 105D of such Act; and
(B) section 10; and
(3) the record-keeping system and reporting requirements
under section 11.
(b) Additional Personnel for Preparation and Consideration of
Applications for Orders Approving Electronic Surveillance and Physical
Search.--
(1) National security division of the department of
justice.--
(A) Additional personnel.--The National Security
Division of the Department of Justice is hereby
authorized such additional personnel as may be
necessary to carry out the prompt and timely
preparation, modification, and review of applications
under Foreign Intelligence Surveillance Act of 1978 for
orders under that Act for foreign intelligence
purposes.
(B) Assignment.--The Attorney General shall assign
personnel authorized by paragraph (1) to and among
appropriate offices of the intelligence community (as
defined in section 3(4) of the National Security Act of
1947 (50 U.S.C. 401a(4))) in order that such personnel
may directly assist personnel of the Intelligence
Community in preparing applications described in that
paragraph and conduct prompt and effective oversight of
the activities of such agencies under Foreign
Intelligence Surveillance Court orders.
(2) Director of national intelligence.--
(A) Additional legal and other personnel.--The
Director of National Intelligence is hereby authorized
such additional legal and other personnel as may be
necessary to carry out the prompt and timely
preparation of applications under the Foreign
Intelligence Surveillance Act of 1978 for orders under
that Act approving electronic surveillance for foreign
intelligence purposes.
(B) Assignment.--The Director of National
Intelligence shall assign personnel authorized by
paragraph (1) to and among the intelligence community
(as defined in section 3(4) of the National Security
Act of 1947 (50 U.S.C. 401a(4))), including the field
offices of the Federal Bureau of Investigation, in
order that such personnel may directly assist personnel
of the intelligence community in preparing applications
described in that paragraph.
(3) Additional legal and other personnel for foreign
intelligence surveillance court.--There is hereby authorized
for the court established under section 103(a) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a)) such
additional staff personnel as may be necessary to facilitate
the prompt and timely consideration by that court of
applications under such Act for orders under such Act approving
electronic surveillance for foreign intelligence purposes.
Personnel authorized by this paragraph shall perform such
duties relating to the consideration of such applications as
that court shall direct.
(4) Supplement not supplant.--The personnel authorized by
this section are in addition to any other personnel authorized
by law.
SEC. 14. DOCUMENT MANAGEMENT SYSTEM FOR APPLICATIONS FOR ORDERS
APPROVING ELECTRONIC SURVEILLANCE.
(a) System Required.--The Attorney General shall, in consultation
with the Director of National Intelligence and the Foreign Intelligence
Surveillance Court, develop and implement a secure, classified document
management system that permits the prompt preparation, modification,
and review by appropriate personnel of the Department of Justice, the
Federal Bureau of Investigation, the National Security Agency, and
other applicable elements of the United States Government of
applications under the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1804) before their submission to the Foreign Intelligence
Surveillance Court.
(b) Scope of System.--The document management system required by
subsection (a) shall--
(1) permit and facilitate the prompt submittal of
applications to the Foreign Intelligence Surveillance Court
under the Foreign Intelligence Surveillance Act of 1978; and
(2) permit and facilitate the prompt transmittal of rulings
of the Foreign Intelligence Surveillance Court to personnel
submitting applications described in paragraph (1), and provide
for the secure electronic storage and retrieval of all such
applications and related matters with the court and for their
secure transmission to the National Archives and Records
Administration.
SEC. 15. TRAINING OF INTELLIGENCE COMMUNITY PERSONNEL IN FOREIGN
INTELLIGENCE COLLECTION MATTERS.
The Director of National Intelligence shall, in consultation with
the Attorney General--
(1) develop regulations to establish procedures for
conducting and seeking approval of electronic surveillance,
physical search, and the installation and use of pen registers
and trap and trace devices on an emergency basis, and for
preparing and properly submitting and receiving applications
and orders under the Foreign Intelligence Surveillance Act of
1978; and
(2) prescribe related training on the Foreign Intelligence
Surveillance Act of 1978 and related legal matters for the
personnel of the applicable agencies of the intelligence
community (as defined in section 3(4) of the National Security
Act of 1947 (50 U.S.C. 401a(4))).
SEC. 16. INFORMATION FOR CONGRESS ON THE TERRORIST SURVEILLANCE PROGRAM
AND SIMILAR PROGRAMS.
As soon as practicable after the date of the enactment of this Act,
but not later than seven days after such date, the President shall
fully inform each member of the Permanent Select Committee on
Intelligence of the House of Representatives and the Select Committee
on Intelligence of the Senate on the following:
(1) The Terrorist Surveillance Program of the National
Security Agency.
(2) Any program in existence from September 11, 2001, until
the effective date of this Act that involves, whether in part
or in whole, the electronic surveillance of United States
persons in the United States for foreign intelligence or other
purposes, and which is conducted by any department, agency, or
other element of the United States Government, or by any entity
at the direction of a department, agency, or other element of
the United States Government, without fully complying with the
procedures set forth in the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1801 et seq.) or chapter 119, 121, or
206 of title 18, United States Code.
SEC. 17. TECHNICAL AND CONFORMING AMENDMENTS.
(a) Table of Contents.--The table of contents in the first section
of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.) is amended by striking the items relating to sections 105A, 105B,
and 105C and inserting the following new items:
``Sec. 105A. Clarification of electronic surveillance of non-United
States persons outside the United States.
``Sec. 105B. Additional authorization of acquisitions of communications
of non-United States persons located
outside the United States who may be
communicating with persons inside the
United States.
``Sec. 105C. Emergency authorization of acquisitions of communications
of non-United States persons located
outside the United States who may be
communicating with persons inside the
United States.
``Sec. 105D. Oversight of acquisitions of communications of non-United
States persons located outside of the
United States who may be communicating with
persons inside the United States.
``Sec. 105E. Dissemination of communications of non-United States
persons located outside of the United
States who may be communicating with
persons inside the United States.''.
(b) Section 103(e) of FISA.--Section 103(e) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(e)) is amended--
(1) in paragraph (1), by striking ``105B(h) or''; and
(2) in paragraph (2), by striking ``105B(h) or''.
(c) Repeal of Certain Provisions of the Protect America Act of
2007.--Sections 4 and 6 of the Protect America Act of 2007 (Public Law
110-55) are hereby repealed.
SEC. 18. SUNSET; TRANSITION PROCEDURES.
(a) Sunset of New Provisions.--
(1) In general.--Except as provided in paragraph (2),
effective on December 31, 2009--
(A) sections 105A, 105B, 105C, and 105D of the
Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.) are hereby repealed; and
(B) the table of contents in the first section of
such Act is amended by striking the items relating to
sections 105A, 105B, 105C, and 105D.
(2) Acquisitions authorized prior to sunset.--Any
authorization or order issued under section 105B of the Foreign
Intelligence Surveillance Act of 1978, as amended by this Act,
in effect on December 31, 2009, shall continue in effect until
the date of the expiration of such authorization or order.
(b) Acquisitions Authorized Prior to Enactment.--
(1) Effect.--Notwithstanding the amendments made by this
Act, an authorization of the acquisition of foreign
intelligence information under section 105B of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.)
made before the date of the enactment of this Act shall remain
in effect until the date of the expiration of such
authorization or the date that is 180 days after such date of
enactment, whichever is earlier.
(2) Report.--Not later than 30 days after the date of the
expiration of all authorizations of acquisition of foreign
intelligence information under section 105B of the Foreign
Intelligence Surveillance Act of 1978 (as added by Public Law
110-55) made before the date of the enactment of this Act in
accordance with paragraph (1), the Director of National
Intelligence and the Attorney General shall submit to the
Permanent Select Committee on Intelligence and the Committee on
the Judiciary of the House of Representatives and the Select
Committee on Intelligence and the Committee on the Judiciary of
the Senate a report on such authorizations, including--
(A) the number of targets of an acquisition under
section 105B of such Act (as in effect on the day
before the date of the enactment of this Act) that were
later determined to be located in the United States;
(B) the number of persons located in the United
States whose communications have been acquired under
such section;
(C) the number of reports disseminated containing
information on a United States person that was
collected under such section;
(D) the number of applications submitted for
approval of electronic surveillance under section 104
of such Act based upon information collected pursuant
to an acquisition authorized under section 105B of such
Act (as in effect on the day before the date of the
enactment of this Act); and
(E) a description of any incidents of non-
compliance with an authorization under such section,
including incidents of non-compliance by--
(i) an element of the intelligence
community with procedures referred to in
subsection (a)(1) of such section;
(ii) an element of the intelligence
community with minimization procedures referred
to in subsection (a)(5) of such section; and
(iii) a person directed to provide
information, facilities, or technical
assistance under subsection (e) of such
section.
(3) Intelligence community defined.--In this subsection,
the term ``intelligence community'' has the meaning given the
term in section 3(4) of the National Security Act of 1947 (50
U.S.C. 401a(4)).
SEC. 19. CERTIFICATION TO COMMUNICATIONS SERVICE PROVIDERS THAT
ACQUISITIONS ARE AUTHORIZED UNDER FISA.
(a) Authorization Under Section 102.--Section 102(a) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)) is amended by
striking ``furnishing such aid'' and inserting ``furnishing such aid
and shall provide such carrier with a certification stating that the
electronic surveillance is authorized under this section and that all
requirements of this section have been met''.
(b) Authorization Under Section 105.--Section 105(c)(2) of such Act
(50 U.S.C. 1805(c)(2)) is amended--
(1) in subparagraph (C), by striking ``; and'' and
inserting ``;'';
(2) in subparagraph (D), by striking ``aid.'' and inserting
``aid; and''; and
(3) by adding at the end the following new subparagraph:
``(E) that the applicant provide such carrier,
landlord, custodian, or other person with a
certification stating that the electronic surveillance
is authorized under this section and that all
requirements of this section have been met.''.
SEC. 20. STATUTE OF LIMITATIONS.
(a) In General.--Section 109 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1809) is amended by adding at the
end the following new subsection:
``(e) Statute of Limitations.--No person shall be prosecuted,
tried, or punished for any offense under this section unless the
indictment is found or the information is instituted not later than 10
years after the commission of the offense.''.
(b) Application.--The amendment made by subsection (a) shall apply
to any offense committed before the date of the enactment of this Act
if the statute of limitations applicable to that offense has not run as
of such date.
SEC. 21. NO RIGHTS UNDER THE RESTORE ACT FOR UNDOCUMENTED ALIENS.
This Act and the amendments made by this Act shall not be construed
to prohibit surveillance of, or grant any rights to, an alien not
permitted to be in or remain in the United States.
SEC. 22. SURVEILLANCE TO PROTECT THE UNITED STATES.
This Act and the amendments made by this Act shall not be construed
to prohibit the intelligence community (as defined in section 3(4) of
the National Security Act of 1947 (50 U.S.C. 401a(4))) from conducting
lawful surveillance that is necessary to--
(1) prevent Osama Bin Laden, al Qaeda, or any other
terrorist or terrorist organization from attacking the United
States, any United States person, or any ally of the United
States;
(2) ensure the safety and security of members of the United
States Armed Forces or any other officer or employee of the
Federal Government involved in protecting the national security
of the United States; or
(3) protect the United States, any United States person, or
any ally of the United States from threats posed by weapons of
mass destruction or other threats to national security.
Passed the House of Representatives November 15, 2007.
Attest:
Clerk.
110th CONGRESS
1st Session
H. R. 3773
_______________________________________________________________________
AN ACT
To amend the Foreign Intelligence Surveillance Act of 1978 to establish
a procedure for authorizing certain acquisitions of foreign
intelligence, and for other purposes.