No Easy Answers
Friday, August 03, 2007
Competing FISA Modifications: DNI (S.1927) v. DEM
Competing FISA modernization proposals.
H.R.3356 - House Democrats
S.2011 - Senate Democrats (Levin/Rockefeller)
S.1927 - DNI proposal presented by Senate Republicans
DNI - July 27 Letter from Mike McConnell
Source: http://gulcfac.typepad.com/georgetown_university_law/files/FISA2007.democratic.fix.pdf
Shorter source:
[Congressional Record: August 3, 2007 (House)]
[Page H9685-H9695]
The competing measure, the DNI proposal as expressed in S.1927, appears near the bottom of page S10619, and at pages S10871-72 of the Congressional Record.
DNI July 27 proposal: http://www.fas.org/irp/news/2007/07/dni072707.pdf
I believe S.1927 has been amended to include sunset of some provisions. I'll be surprised if there is sunset on the immunity from suit, payment for hardware, or other substantive aspects that are significant from a civil liberties point of view.
[Aug 5] The amendment sunsets nearly everything, except whatever orders are in place, remain in place. Purely speculating, if an order is to maintain a tap for an indefinite period, then sunsetting the law that admitted the order in the first place is a meaningless act.
[Aug 8] Added Admiral McConnell's propsoed statutory language as expressed in his July 27th letter to Congressional leadership.
[Aug 11] A few related statutory proposals: DNI April 2007 proposal, and see this summary of September 2006 action, as well as this very terse summary of Heather Wilson's H.R.5825.
[Aug 23] Added text of S.2011.
IMPROVING FOREIGN INTELLIGENCE SURVEILLANCE TO DEFEND THE NATION AND
THE CONSTITUTION ACT OF 2007
Mr. CONYERS. Madam Speaker, I move to suspend the rules and pass the
bill (H.R. 3356) to amend the Foreign Intelligence Surveillance Act of
1978 to establish a procedure for authorizing certain electronic
surveillance.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 3356
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Improving Foreign
Intelligence Surveillance to Defend the Nation and the
Constitution Act of 2007''.
SEC. 2. PURPOSE.
The purpose of this Act is to facilitate the acquisition of
foreign intelligence information by providing for the
electronic surveillance of persons reasonably believed to be
outside the United States pursuant to methodologies proposed
by the Attorney General, reviewed by the Foreign Intelligence
Surveillance Court, and applied by the Attorney General
without further court approval, unless otherwise required
under the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.).
SEC. 3. ADDITIONAL PROCEDURE FOR AUTHORIZING CERTAIN
ELECTRONIC SURVEILLANCE.
(a) In General.--The Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1801 et seq.) is amended by inserting
after section 105 the following:
``CLARIFICATION OF ELECTRONIC SURVEILLANCE OF PERSONS OUTSIDE THE
UNITED STATES
``Sec. 105A. Notwithstanding any other provision of this
Act, a court order is not required for the acquisition of the
contents of any communication between persons that are not
located within 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.
``ADDITIONAL PROCEDURE FOR AUTHORIZING CERTAIN ELECTRONIC SURVEILLANCE
``Sec. 105B. (a) In General.--Notwithstanding any other
provision of this title, the Attorney General, upon the
authorization of the President, may apply to a judge of the
court established under section 103(a) for an ex parte order,
or an extension of an order, authorizing electronic
surveillance for periods of not more than 1 year, for the
purpose of acquiring foreign intelligence information, in
accordance with this section.
``(b) Application.--
``(1) Specific persons and places not required.--An
application for an order, or extension of an order, submitted
under subsection (a) shall not be required to identify--
``(A) the persons, other than a foreign power, against whom
electronic surveillance will be directed; or
``(B) the specific facilities, places, premises, or
property at which the electronic surveillance will be
directed.
``(2) Contents.--An application for an order, or extension
of an order, submitted under subsection (a) shall include--
``(A) a statement that the electronic surveillance is
directed at persons reasonably believed to be outside the
United States;
``(B) the identity of the Federal officer seeking to
conduct such electronic surveillance;
``(C) a description of--
``(i) the methods to be used by the Attorney General to
determine, during the duration of the order, that there is a
reasonable belief that the targets of the electronic
surveillance are persons outside the United States; and
``(ii) the procedures to audit the implementation of the
methods described in clause (i) to achieve the objective
described in that clause;
``(D) a description of the nature of the information
sought, including the identity of any foreign power against
whom electronic surveillance will be directed; and
``(E) a statement of the means by which the electronic
surveillance will be effected and such other information
about the surveillance techniques to be used as may be
necessary to assess the proposed minimization procedures.
``(c) Application Approval; Order.--
``(1) Application approval.--A judge considering an
application for an order, or extension of an order, submitted
under subsection (a) shall approve such application if the
Attorney General certifies in writing under oath, and the
judge upon consideration of the application determines,
that--
``(A) the acquisition does not constitute electronic
surveillance within the meaning of paragraph (1) or (3) of
section 101(f);
``(B) the methods described by the Attorney General under
subsection (b)(2)(B)(i) are reasonably designed to determine
whether the persons are outside the United States;
``(C) a significant purpose of the electronic surveillance
is to obtain foreign intelligence information;
``(D) the proposed minimization procedures meet the
definition of minimization procedures under section 101(h).
``(2) Order.--A judge approving an application pursuant to
paragraph (1) shall issue an order that--
``(A) authorizes electronic surveillance as requested, or
as modified by the judge;
``(B) requires a communications service provider,
custodian, or other person who has the lawful authority to
access the information, facilities, or technical assistance
necessary to accomplish the electronic surveillance, upon the
request of the applicant, to furnish the applicant forthwith
with such information, facilities, or technical assistance in
a manner that will protect the secrecy of the electronic
surveillance and produce a minimum of interference with the
services that provider, custodian, or other person is
providing the target of electronic surveillance;
``(C) requires such communications service provider,
custodian, or other person, 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) directs the Federal Government to compensate, at the
prevailing rate, a person for providing information,
facilities, or assistance pursuant to such order; and
``(E) directs the applicant to follow the minimization
procedures as proposed or as modified by the court.
``(3) Assessment of compliance with minimization
procedures.--At or before the end of the period of time for
which electronic surveillance is approved by an order or an
extension under this section, the judge may assess compliance
with the minimization procedures by reviewing the
circumstances under which information concerning United
States persons was acquired, retained, or disseminated.
``(d) Guidelines for Surveillance of United States
Persons.--Not later than 15 days after the date of the
enactment of this section, the Attorney General shall
establish guidelines that are reasonably designed to ensure
that an application is filed under section 104, if otherwise
required by this Act, when the Attorney General seeks to
initiate electronic surveillance, or continue electronic
surveillance that began under this section, of a United
States person.
``(e) Submission of Orders, Guidelines, and Audits.--
``(1) Orders.--Upon the entry of an order under subsection
(c)(2), the Attorney General shall submit to the appropriate
committees of Congress such order.
``(2) Guidelines.--Upon the establishment of the guidelines
under subsection (d), the Attorney General shall submit to
the appropriate committees of Congress and the court
established under section 103(a) such guidelines.
``(3) Audits.--Not later than 60 days after the date of the
enactment of this section, and every 60 days thereafter until
the expiration of all orders issued under this section, the
Inspector General of the Department of Justice shall complete
an audit on the compliance with the guidelines established
under subsection (d) 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)--
``(A) the results of such audit;
``(B) a list of any targets of electronic surveillance
under this section determined to be in the United States; and
``(C) the number of persons in the United States whose
communications have been intercepted under this section.
``(f) Immediate Emergency Authorization.--
``(1) In general.--Notwithstanding any other provision of
this title, during the first 15 days following the date of
the enactment of this section, upon the authorization of the
President, the Attorney General may authorize electronic
surveillance without a court order under this title until the
date that is 15 days after the date on which the Attorney
General authorizes such electronic surveillance if the
Attorney General determines--
``(A) 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; and
``(B) the electronic surveillance will be directed at
persons reasonably believed to be outside the United States.
``(2) Pending order.--
``(A) Initial extension.--If at the end of the period in
which the Attorney General authorizes electronic surveillance
under paragraph (1), the Attorney General has submitted an
application for an order under subsection (a) but the court
referred to in section 103(a) has not approved or disapproved
such application, such court may authorize the Attorney
General to extend the emergency authorization of electronic
surveillance under paragraph (1) for not more than 15 days.
``(B) Subsequent extension.--If at the end of the extension
of the emergency authorization of electronic surveillance
under subparagraph (A) the court referred to in section
103(a) has not approved or disapproved the application
referred to in subparagraph (A), such court may authorize the
Attorney General to extend the emergency authorization of
electronic surveillance under paragraph (1) for not more than
15 days.
``(3) Maximum length of authorization.--Notwithstanding
paragraphs (1) and (2), in no case shall electronic
surveillance be authorized under this subsection for a total
of more than 45 days without a court order under this title.
``(4) Minimization procedures.--The Attorney General shall
ensure that any electronic surveillance conducted pursuant to
paragraph (1) or (2) is in accordance with minimization
procedures that meet the definition of minimization
procedures in section 101(h).
``(5) Information, facilities, and technical assistance.--
Pursuant to an authorization of electronic surveillance under
this subsection, the Attorney General may direct a
communications service provider, custodian, or other person
who has the lawful authority to access the information,
facilities, or technical assistance necessary to accomplish
such electronic surveillance to--
``(A) furnish the Attorney General forthwith with such
information, facilities, or technical assistance in a manner
that will protect the secrecy of the electronic surveillance
and produce a minimum of interference with the services that
provider, custodian, or other person is providing the target
of electronic surveillance; 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.
``(g) Prohibition on Liability for Providing Assistance.--
Section 105(i), relating to protection from liability for the
furnishing of information, facilities, or technical
assistance pursuant to a court order under this Act, shall
apply to this section.
``(h) Effect of Section on Other Authorities.--The
authority under this section is in addition to the authority
to conduct electronic surveillance under sections 104 and
105.
``(i) Appropriate Committees of Congress Defined.--In this
section, the term `appropriate committees of Congress'
means--
``(1) the Select Committee on Intelligence and the
Committee on the Judiciary of the Senate; and
``(2) the Permanent Select Committee on Intelligence and
the Committee on the Judiciary of the House of
Representatives.''.
(b) Technical and Conforming Amendment.--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 inserting after the item relating to section 105 the
following:
``Sec. 105A. Clarification of electronic surveillance of persons
outside the United States.
``Sec. 105B. Additional procedure for authorizing certain electronic
surveillance.''.
(c) Sunset.--
(1) In general.--Except as provided in paragraph (2),
effective on the date that is 120 days after the date of the
enactment of this Act, sections 105A and 105B of the Foreign
Intelligence Surveillance Act of 1978, as added by subsection
(a), are hereby repealed.
(2) Exception.--Any order under section 105B of the Foreign
Intelligence Surveillance Act of 1978, as added by this Act,
in effect on such date that is 120 days after the date of the
enactment of this Act, shall continue in effect until the
date of the expiration of such order.
S 2011 PCS
Calendar No. 332
110th CONGRESS
1st Session
S. 2011
Entitled the `Protect America Act of 2007'.
IN THE SENATE OF THE UNITED STATES
August 3, 2007
Mr. LEVIN (for himself and Mr. ROCKEFELLER) introduced the following bill;
which was read twice, considered, read the third time, and failed of passage
August 3, 2007
Ordered to be placed on the calendar
_______________________________________________________________________
A BILL
Entitled the `Protect America Act of 2007'.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. PURPOSE.
To provide for a procedure before the FISA Court for an order, which may be
amended as necessary at the request of the Government with the approval
of the Court, authorizing procedures, guidelines, means or methods that
will permit the collection of intelligence between foreign persons
located outside the United States, while bringing incidental contacts
with United States persons at home or abroad into compliance with
existing law and minimization procedures.
SEC. 2. ADDITIONAL PROCEDURE FOR AUTHORIZING CERTAIN ELECTRONIC SURVEILLANCE.
(a) In General- The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1801 et seq.) is amended by inserting after section 105 the following:
`CLARIFICATION OF SURVEILLANCE OF PERSONS OUTSIDE THE UNITED STATES
`Sec. 105A. Notwithstanding any other provision of this Act, a court order
is not required for the electronic surveillance of the contents of any
communication between persons that are not located within 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.
`ADDITIONAL PROCEDURE FOR COURT APPROVAL FOR AUTHORIZING CERTAIN ELECTRONIC
SURVEILLANCE
`Sec. 105B. (a) In General- Notwithstanding any other provision of this
title, the Attorney General, in consultation with Director of National
Intelligence, upon the authorization of the President, may apply to a
judge of the court established under section 103(a) for an ex parte
order, or an extension of an order, authorizing electronic surveillance
for a period of 1 year, in accordance with this section.
`(b) Application-
`(1) CONTENTS- An application for an order, or extension of an order,
submitted under subsection (a) shall include--
`(A) the identity of the Federal officer making the application;
`(B) a written certification made under oath by the Director of National
Intelligence and the Attorney General that--
`(i) there are reasonable procedures in place for determining that the
electronic surveillance under this section is directed at persons
reasonably believed to be located outside the United States;
`(ii) there are reasonable procedures in place to assess the implementation
of the procedures described in subclause (i) to achieve the objective
described in that subclause;
`(iii) the acquisition does not constitute electronic surveillance within
the meaning of paragraph (1) or (3) of section 101(f), and, to the
extent any acquisition constitutes electronic surveillance within the
meaning of paragraph (2) or (4) of section 101(f), that it is approved
or minimized as appropriate;
`(iv) a significant purpose of the electronic surveillance is to obtain
foreign intelligence information;
`(v) the proposed minimization procedures meet the definition of
minimization procedures under section 101(h); and
`(vi) the electronic surveillance involves obtaining foreign intelligence
information from or with the assistance of a communications service
provider, custodian, or other person (including any officer, employee,
agent or other specified person of such service provider, custodian, or
other person) who has access to communications, either as they are
transmitted or while they are stored, or equipment that is being or may
be used to transmit or store such communications;
`(C) a general description of the nature of the foreign intelligence
information sought; and
`(D) a general statement of the means by which the electronic surveillance
will be effected.
`(2) SPECIFIC PERSONS AND PLACES NOT REQUIRED-
`(A) An application for an order, or extension of an order, submitted under
subsection (a) shall not be required to identify--
`(i) the persons, other than a foreign power, against whom the electronic
surveillance will be directed; or
`(ii) the specific facilities, places, premises, or property at which the
electronic surveillance will be directed or conducted.
`(c) Application Approval; Order-
`(1) APPLICATION APPROVAL- Notwithstanding any other law, a judge
considering an application for an order, or extension of an order,
submitted under subsection (a) shall--
`(A) assess--
`(i) the procedures by which the Government determines that electronic
surveillance under this section is directed at persons reasonably
believed to be located outside the United States; and
`(ii) the minimization procedures to be used with respect to United States
persons from such electronic surveillance activity; and
`(B) approve such application if the judge determines that the procedures
assessed are in accordance with law and are reasonably designed to
determine whether the targets are outside the United States.
`(2) ORDER- A judge approving an application pursuant to paragraph (1) shall
issue an order that--
`(A)(i) authorizes the electronic surveillance as requested; and
`(ii) approves the minimization procedures with respect to United States
persons;
`(B) directs the applicant to follow the procedures referred to in section
105B(b)(1)(B)(i) and the minimization procedures submitted by the
Government as approved;
`(C) at the request of the applicant, requires a specified communications
service provider, custodian, or other specified person, to furnish the
applicant forthwith with all information, facilities, or technical
assistance necessary to accomplish the electronic surveillance in a
manner that will protect the secrecy of the electronic surveillance and
produce a minimum of interference with the services that provider,
custodian, or other person is providing; and
`(D) at the request of the applicant, requires such communications provider,
custodian, or other specified person to maintain under security
procedures approved by the Attorney General and the Director of National
Intelligence any records concerning the electronic surveillance or the
aid furnished that such person wishes to maintain.
`(3) MINIMIZATION PROCEDURES- An application for reauthorization of an order
issued under this section, shall contain a description of the
Government's minimization procedures.
`(d) Guidelines for Surveillance of United States Persons- Not later than 15
days after the date of the enactment of this section, the Attorney
General shall establish guidelines that address communications with
persons inside the United States and United States persons outside the
United States and are designed to ensure that an application is filed
under section 104 when the Attorney General seeks to continue electronic
surveillance that began under this section but--
`(1) effectively is or has become surveillance of a person within the United
States; or
`(2) is of a nature or quantity as to infringe on the reasonable expectation
of privacy of persons within the United States.
`(e) Compensation- The Government shall compensate, at the prevailing rate,
a person for providing information, facilities, or assistance pursuant
to an order of the court under this section or pursuant to a directive
under section 105C.
`(f) Liability- 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 under this section
or a directive under section 105C.
`(g) Retention of Orders- An order granted under this section and directives
under section 105C shall be retained for a period of not less than 10
years from the date on which such order or directive is made.
`(h) Appeal- The Government may appeal any denial of an application
submitted under this section to the court established under section
103(b). If such court determines that the denial was properly entered,
the court shall immediately provide for the record a written statement
of each reason for its decision, and, on petition of the United States
for a writ of certiorari, the record shall be transmitted under seal to
the Supreme Court of the United States, which shall have jurisdiction to
review such decision.
`IMMEDIATE AUTHORIZATION OF CERTAIN ELECTRONIC SURVEILLANCE
`Sec. 105C. (a) In General- Notwithstanding any law, the Director of
National Intelligence and the Attorney General, may, prior to the
submission of an application under section 105B, authorize the immediate
electronic surveillance of persons reasonably believed to be outside the
United States if the Director of National Intelligence and the Attorney
General determine that it is in the interest of the national security of
the United States to begin the electronic surveillance and such
electronic surveillance is subject to the certification to be filed as
set forth below. The authority in this subsection shall not be used for
successive or multiple authorizations of electronic surveillance of the
same or similar scope.
`(b) In such case, the Attorney General shall--
`(1) transmit within 5 days of the initiation of electronic surveillance
pursuant to this section under seal to the court established under
section 103(a) a copy of a certification made under section
105B(b)(1)(B). Such certification shall be maintained under security
measures established by the Chief Justice of the United States and the
Attorney General, in consultation with the Director of National
Intelligence, and shall remain sealed except upon motion of the
Government;
`(2) submit an application for the approval of such electronic surveillance
to the court established under section 103(a) as soon as practicable,
but in no event more than 10 days after the initiation of the electronic
surveillance; and
`(3) the court shall act on such application in accordance with section 105B
within 30 days after receiving an application under this subsection. The
court may grant one or more extensions of not more than 30 days, if the
court determines that additional time is needed. Any electronic
surveillance subsequent to the court's action shall be conducted only if
approved in accordance with section 105B. If the application is
disapproved, the data collected may be used or disclosed only as
authorized by the court.
`(c) Specific Persons and Places Not Required- A certification under
subsection (a) is not required to identify--
`(1) the person or foreign power against whom the electronic surveillance
will be directed; or
`(2) the specific facilities, places, premises, or property at which the
electronic surveillance will be directed or conducted.
`(d) Directive- With respect to an authorization of electronic surveillance
under this section, the Attorney General, in consultation with the
Director of National Intelligence, may direct a specified communications
service provider, custodian, or other specified person, to--
`(1) furnish the applicant forthwith with all information, facilities, or
technical assistance necessary to accomplish the electronic surveillance
in a manner that will protect the secrecy of the electronic surveillance
and produce a minimum of interference with the services that provider,
custodian, or other person is providing; and
`(2) maintain under security procedures approved by the Attorney General and
the Director of National Intelligence any records concerning the
electronic surveillance or the aid furnished that such person wishes to
maintain.
`(e) Failure To Comply- In the case of a failure to comply with a directive
issued pursuant to subsection (e), the Attorney General, in consultation
with the Director of National Intelligence, may invoke the aid of the
court established under section 103(a) to compel compliance with the
directive, and the court shall issue an order requiring the person to
comply with the directive unless the court finds that the directive does
not meet the requirements of this section or is otherwise unlawful.
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.
`(f) Pendency of Appeal- With the approval of a court of competent
jurisdiction, the Government may continue any electronic surveillance
affected by a directive issued under this section during the pendency of
consideration of an application submitted under section 105B, and any
appeal process, including the period during which a petition for writ of
certiorari may be pending and the period of any review by the Supreme
Court of the United States.
`REPORT TO CONGRESS
`Sec. 105D. Report to Congress- Not later than four months after the date of
the enactment of this Act, the Inspector General of the Department of
Justice, in coordination with the Inspector General of the Office of the
Director of National Intelligence and the Inspector General of the
National Security Agency, shall inform, in a manner consistent with the
national security, the Select Committee on Intelligence of the Senate,
the Permanent Select Committee on Intelligence of the House of
Representatives, the Committee on the Judiciary of the Senate, and the
Committee on the Judiciary of the House of Representatives, concerning
electronic surveillance under this section during the previous
four-month period. Among the elements of each report made under this
section shall be--
`(1) an assessment of whether the Act is functioning as intended and the
degree to which the program is resulting in the collection of
communications that originate or terminate inside the United States;
`(2) a description of the incidents of non-compliance with a directive
issued by the Attorney General under section 105C;
`(3) a copy of any guidelines and procedures implementing this Act,
including the guidelines established pursuant to section 105B(d);
`(4) a description of any incidents of non-compliance by an element of the
Intelligence Community with guidelines or procedures established for
determining that the electronic surveillance authorized by the Attorney
General and Director of National Intelligence directed at persons
reasonably believed to be outside the United States;
`(5) a description of any incidents of non-compliance with respect to
minimization procedures and approval requirements concerning U.S.
persons; and
`(6) the number of certifications and directives issued under section 105C
during the reporting period.'.
(b) Technical and Conforming Amendment- 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 inserting after the item relating to section
105 the following:
`Sec. 105A. Clarification of surveillance of persons outside the United
States.
`Sec. 105B. Additional procedure for court approval authorizing certain
electronic surveillance.
`Sec. 105C. Immediate authorization of certain electronic surveillance.
`Sec. 105D. Report to Congress.'.
SEC. 3. EFFECTIVE DATE; TRANSITION PROCEDURES.
(a) Except as otherwise provided, the amendments made by this Act shall take
effect immediately after the date of the enactment of this Act.
(b) Notwithstanding any other provision of this Act, any order in effect on
the date of enactment of this Act issued pursuant to the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) shall
remain in effect until the date of expiration of such order, and, at the
request of the applicant, the court established under section 103(a) of
such Act (50 U.S.C. 1803(a)) shall reauthorize such order as long as the
facts and circumstances continue to justify issuance of such order under
the provisions of the Foreign Intelligence Surveillance Act of 1978, as
in effect on the day before the applicable effective date of this Act.
The Government also may file new applications, and the court established
under section 103(a) of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1803(a)) shall enter orders granting such applications
pursuant to such Act, as long as the application meets the requirements
set forth under the provisions of such Act as in effect on the day
before the effective date of this Act. At the request of the applicant,
the court established under section 103(a) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1803(a)), shall extinguish any
extant authorization to conduct electronic surveillance or physical
search entered pursuant to such Act. Any electronic surveillance or
physical search conducted pursuant to an order entered under this
subsection shall be subject to the provisions of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), as in
effect on the day before the effective date of this Act.
SEC. 4. SUNSET.
(a) Except as provided in subsections (b) and (c) the amendments made by
this Act shall cease to have force or effect 180 days after the date of
enactment of this Act.
(b) Any order under section 105B of the Foreign Intelligence Surveillance
Act of 1978, as added by this Act, in effect on the date described in
paragraph (1) shall continue in effect until the date of the expiration
of such order.
(c) The expiration of amendments pursuant to subsection (a) shall not have
any effect upon the liability of any party under subsection (e) of
section 105B. Notwithstanding subsection (a), subsection (e) of section
105B shall remain in effect with regard to action taken in accordance
with sections 105A, B, C, and D.
The amendment (No. 2649) to S. 1927 is as follows:
(Purpose: To provide a sunset provision)
At the end, add the following:
(c) Sunset.--Except as provided in subsection (d), sections
2, 3, 4, and 5 of this Act, and the amendments made by this
Act, shall cease to have effect 180 days after the date of
the enactment of this Act.
(d) Authorizations in Effect.--Authorizations for the
acquisition of foreign intelligence information pursuant to
the amendments made by this Act, and directives issued
pursuant to such authorizations, shall remain in effect until
their expiration. Such acquisitions shall be governed by the
applicable provisions of such amendments and shall not be
deemed to constitute electronic surveillance as that term is
defined in section 101(f) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801(f)).
S. 1927
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Protect America Act of
2007''.
SEC. 2. ADDITIONAL PROCEDURE FOR AUTHORIZING CERTAIN
ACQUISITIONS OF FOREIGN INTELLIGENCE
INFORMATION.
The Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.) is amended by inserting after section
105 the following:
``CLARIFICATION OF ELECTRONIC SURVEILLANCE OF PERSONS OUTSIDE THE
UNITED STATES
``Sec. 105A. Nothing in the definition of electronic
surveillance under section 101(f) shall be construed to
encompass surveillance directed at a person reasonably
believed to be located outside of the United States.
``ADDITIONAL PROCEDURE FOR AUTHORIZING CERTAIN ACQUISITIONS CONCERNING
PERSONS LOCATED OUTSIDE THE UNITED STATES
``Sec. 105B. (a) Notwithstanding any other law, the
Director of National Intelligence and the Attorney General,
may for periods of up to one year authorize the acquisition
of foreign intelligence information concerning persons
reasonably believed to be outside the United States if the
Director of National Intelligence and the Attorney General
determine, based on the information provided to them, that--
``(1) there are reasonable procedures in place for
determining that the acquisition of foreign intelligence
information under this section concerns persons reasonably
believed to be located outside the United States, and such
procedures will be subject to review of the Court pursuant to
section 105C of this Act;
``(2) the acquisition does not constitute electronic
surveillance;
``(3) the acquisition involves obtaining the foreign
intelligence information from or with the assistance of a
communications service provider, custodian, or other person
(including any officer, employee, agent, or other specified
person of such service provider, custodian, or other person)
who has access to communications, either as they are
transmitted or while they are stored, or equipment that is
being or may be used to transmit or store such
communications;
``(4) a significant purpose of the acquisition is to obtain
foreign intelligence information; and
``(5) the minimization procedures to be used with respect
to such acquisition activity meet the definition of
minimization procedures under section 101(h).
``This determination shall be in the form of a written
certification, under oath, supported as appropriate by
affidavit of appropriate officials in the national security
field occupying positions appointed by the President, by and
with the consent of the Senate, or the Head of any Agency of
the Intelligence Community, unless immediate action by the
Government is required and time does not permit the
preparation of a certification. In such a case, the
determination of the Director of National Intelligence and
the Attorney General shall be reduced to a certification as
soon as possible but in no event more than 72 hours after the
determination is made.
``(b) A certification 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.
``(c) The Attorney General shall transmit as soon as
practicable under seal to the court established under section
103(a) a copy of a certification made under subsection (a).
Such certification shall be maintained under security
measures established by the Chief Justice of the United
States and the Attorney General, in consultation with the
Director of National Intelligence, and shall remain sealed
unless the certification is necessary to determine the
legality of the acquisition under section 105B.
``(d) An acquisition under this section may be conducted
only in accordance with the certification of the Director of
National Intelligence and the Attorney General, or their oral
instructions if time does not permit the preparation of a
certification, and the minimization procedures adopted by the
Attorney General. The Director of National Intelligence and
the Attorney General shall assess compliance with such
procedures and shall report such assessments to the Permanent
Select Committee on Intelligence of the House of
Representatives and the Select Committee on Intelligence of
the Senate under section 108(a).
``(e) With respect to an authorization of an acquisition
under section 105B, the Director of National Intelligence and
Attorney General may direct a person to--
``(1) immediately provide the Government with all
information, facilities, and assistance necessary to
accomplish the acquisition in such a manner as will protect
the secrecy of the acquisition and produce a minimum of
interference with the services that such person is providing
to the target; and
``(2) maintain under security procedures approved by the
Attorney General and the Director of National Intelligence
any records concerning the acquisition or the aid furnished
that such person wishes to maintain.
``(f) The Government shall compensate, at the prevailing
rate, a person for providing information, facilities, or
assistance pursuant to subsection (e).
``(g) In the case of a failure to comply with a directive
issued pursuant to subsection (e), the Attorney General may
invoke the aid of the court established under section 103(a)
to compel compliance with the directive. The court shall
issue an order requiring the person to comply with the
directive if it finds that the directive was issued in
accordance with subsection (e) and is otherwise lawful.
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.
``(h)(1)(A) A person receiving a directive issued pursuant
to subsection (e) may challenge the legality of that
directive by filing a petition with the pool established
under section 103(e)(1).
``(B) The presiding judge designated pursuant to section
103(b) shall assign a petition filed under subparagraph (A)
to one of the judges serving in the pool established by
section 103(e)(1). Not later than 48 hours after the
assignment of such petition, the assigned judge shall conduct
an initial review of the directive. If the assigned judge
determines that the petition is frivolous, the assigned judge
shall immediately deny the petition and affirm the directive
or any part of the directive that is the subject of the
petition. If the assigned judge determines the petition is
not frivolous, the assigned judge shall, within 72 hours,
consider the petition in accordance with the procedures
established under section 103(e)(2) and provide a written
statement for the record of the reasons for any determination
under this subsection.
``(2) A judge considering a petition to modify or set aside
a directive may grant such petition only if the judge finds
that such directive does not meet the requirements of this
section or is otherwise unlawful. If the judge does not
modify or set aside the directive, the judge shall
immediately affirm such directive, and order the recipient to
comply with such directive.
``(3) Any directive not explicitly modified or set aside
under this subsection shall remain in full effect.
``(i) The Government or a person receiving a directive
reviewed pursuant to subsection (h) may file a petition with
the Court of Review established under section 103(b) for
review of the decision issued pursuant to subsection (h) not
later than 7 days after the issuance of such decision. Such
court of review shall have jurisdiction to consider such
petitions and shall provide for the record a written
statement of the reasons for its decision. On petition for a
writ of certiorari by the Government or any person receiving
such directive, the record shall be transmitted under seal to
the Supreme Court, which shall have jurisdiction to review
such decision.
``(j) Judicial proceedings under this section shall be
concluded as expeditiously as possible. The record of
proceedings, including petitions filed, orders granted, and
statements of reasons for decision, shall be maintained under
security measures established by the Chief Justice of the
United States, in consultation with the Attorney General and
the Director of National Intelligence.
``(k) All petitions under this section shall be filed under
seal. In any proceedings under this section, the court shall,
upon request of the Government, review ex parte and in camera
any Government submission, or portions of a submission, which
may include classified information.
``(l) 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 a
directive under this section.
``(m) A directive made or an order granted under this
section shall be retained for a period of not less than 10
years from the date on which such directive or such order is
made.''.
SEC. 3. SUBMISSION TO COURT REVIEW AND ASSESSMENT OF
PROCEDURES.
The Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.) is amended by inserting after section
105B the following:
``SUBMISSION TO COURT REVIEW OF PROCEDURES
``Sec. 105C. (a) No later than 120 days after the
effective date of this Act, the Attorney General shall submit
to the Court established under section 103(a), the procedures
by which the Government determines that acquisitions
conducted pursuant to section 105B do not constitute
electronic surveillance. The procedures submitted pursuant to
this section shall be updated and submitted to the Court on
an annual basis.
``(b) No later than 180 days after the effective date of
this Act, the court established under section 103(a) shall
assess the Government's determination under section
105B(a)(1) that those procedures are reasonably designed to
ensure that acquisitions
[[Page S10872]]
conducted pursuant to section 105B do not constitute
electronic surveillance. The court's review shall be limited
to whether the Government's determination is clearly
erroneous.
``(c) If the court concludes that the determination is not
clearly erroneous, it shall enter an order approving the
continued use of such procedures. If the court concludes that
the determination is clearly erroneous, it shall issue an
order directing the Government to submit new procedures
within 30 days or cease any acquisitions under section 105B
that are implicated by the court's order.
``(d) The Government may appeal any order issued under
subsection (c) to the court established under section 103(b).
If such court determines that the order was properly entered,
the court shall immediately provide for the record a written
statement of each reason for its decision, and, on petition
of the United States for a writ of certiorari, the record
shall be transmitted under seal to the Supreme Court of the
United States, which shall have jurisdiction to review such
decision. Any acquisitions affected by the order issued under
subsection (c) of this section may continue during the
pendency of any appeal, the period during which a petition
for writ of certiorari may be pending, and any review by the
Supreme Court of the United States.''.
SEC. 4. REPORTING TO CONGRESS.
On a semi-annual basis the Attorney General shall inform
the Select Committee on Intelligence of the Senate, the
Permanent Select Committee on Intelligence of the House of
Representatives, the Committee on the Judiciary of the
Senate, and the Committee on the Judiciary of the House of
Representatives, concerning acquisitions under this section
during the previous 6-month period. Each report made under
this section shall include--
(1) a description of any incidents of non-compliance with a
directive issued by the Attorney General and the Director of
National Intelligence under section 105B, to include--
(A) incidents of non-compliance by an element of the
Intelligence Community with guidelines or procedures
established for determining that the acquisition of foreign
intelligence authorized by the Attorney General and Director
of National Intelligence concerns persons reasonably to be
outside the United States; and
(B) incidents of noncompliance by a specified person to
whom the Attorney General and Director of National
Intelligence issue a directive under this section; and
(2) the number of certifications and directives issued
during the reporting period.
SEC. 5. TECHNICAL AMENDMENT AND CONFORMING AMENDMENTS.
(a) In General.--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 ``501(f)(1)'' and
inserting ``105B(h) or 501(f)(1)''; and
(2) in paragraph (2), by striking ``501(f)(1)'' and
inserting ``105B(h) or 501(f)(1)''.
(b) 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 inserting after the
item relating to section 105 the following:
``105A. Clarification of electronic surveillance of persons outside the
United States.
``105B. Additional procedure for authorizing certain acquisitions
concerning persons located outside the United States.
``105C. Submission to court review of procedures.''.
SEC. 6. EFFECTIVE DATE; TRANSITION PROCEDURES.
(a) Effective Date.--Except as otherwise provided, the
amendments made by this Act shall take effect immediately
after the date of the enactment of this Act.
(b) Transition Procedures.--Notwithstanding any other
provision of this Act, any order in effect on the date of
enactment of this Act issued pursuant to the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.) shall remain in effect until the date of expiration of
such order, and, at the request of the applicant, the court
established under section 103(a) of such Act (50 U.S.C.
1803(a)) shall reauthorize such order as long as the facts
and circumstances continue to justify issuance of such order
under the provisions of the Foreign Intelligence Surveillance
Act of 1978, as in effect on the day before the applicable
effective date of this Act. The Government also may file new
applications, and the court established under section 103(a)
of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1803(a)) shall enter orders granting such applications
pursuant to such Act, as long as the application meets the
requirements set forth under the provisions of such Act as in
effect on the day before the effective date of this Act. At
the request of the applicant, the court established under
section 103(a) of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1803(a)), shall extinguish any extant
authorization to conduct electronic surveillance or physical
search entered pursuant to such Act. Any surveillance
conducted pursuant to an order entered under this subsection
shall be subject to the provisions of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.), as in effect on the day before the effective date of
this Act.
(c) Sunset.--Except as provided in subsection (d), sections
2, 3, 4, and 5 of this Act, and the amendments made by this
Act, shall cease to have effect 180 days after the date of
the enactment of this Act.
(d) Authorizations in Effect.--Authorizations for the
acquisition of foreign intelligence information pursuant to
the amendments made by this Act, and directives issued
pursuant to such authorizations, shall remain in effect until
their expiration. Such acquisitions shall be governed by the
applicable provisions of such amendments and shall not be
deemed to constitute electronic surveillance as that term is
defined in section 101(f) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801(f)).
UNCLASSIFIED
DIRECTOR OF NATIONAL INTELLIGENCE
WASHINGTON, DC 20511
July 27, 2007
The Honorable Harry Reid
Majority Leader
United States Senate
The Honorable Mitch McConnell
Minority Leader
United States Senate
The Honorable Nancy Pelosi
Speaker
House of Representatives
The Honorable John A. Boehner
Minority Leader
House of Representatives
Dear Majority Leader Reid, Minority Leader McConnell, Madam Speaker, and Minority
Leader Boehner:
I appreciate the opportunity for today's meeting between staff members and the
constructive dialogue on legislation to modernize the Foreign Intelligence Surveillance Act
(FISA) and restore our capability to help defend the country effectively. I am pleased that
there appears to be genuine agreement on the need to act before the August recess to close
gaps in our current capability.
Congressional staff provided thoughts on possible modifications of the current FISA
court process as an interim solution to remedy this gap. Unfortunately, this proposal would
not close critical gaps in the Intelligence Community's ability to provide warning of threats to
the country. The proposal would continue the current situation that, in a significant number of
cases, we would have to obtain court orders to collect foreign intelligence about foreign
targets located overseas. The proposal would also require in practice that we continue to
divert scarce counterterrorism experts to compiling court submissions in order to gain judicial
approval to gather necessary foreign intelligence about these overseas targets. I conclude this
proposal would not solve the deep concerns I have expressed about the current situation
facing the country.
Attached is an interim proposal which I believe will effectively close the critical gaps in
our intelligence capability in the short term. Although my strong preference is the immediate
adoption of the proposal I transmitted to Congress in April, in light of the urgency of the
UNCLASSIFIED
UNCLASSIFIED
situation, I offer the attached significantly narrowed proposal focused on the current, urgent
need of the Intelligence Community to provide warning. The proposal would make clear that
court orders are not necessary to effectively collect foreign intelligence about foreign targets
overseas. The proposal would also provide a means of obtaining assistance that may be
required from private parties.
It is also my strong preference that we immediately provide liability protection for
those who are alleged to have assisted the government following September 11, 2001.
However, in recognition of your indication that more time is necessary to consider this
matter, the interim proposal does not contain such a provision. While far from ideal, this
interim proposal would immediately give our Intelligence Community the tools it needs to
protect the Nation, pending continued discussion of this important additional issue.
I am available to brief all members of the Congress at their earliest convenience on this
matter. I look forward to continuing our discussions and constructive dialogue. If you have
any questions on this matter, please contact me or the Chief of Staff to the President.
Sincerely,
J.M. McConnell
cc: The Honorable John D. Rockefeller IV
The Honorable Christopher S. Bond
The Honorable Silvestre Reyes
The Honorable Peter Hoekstra
The Honorable Patrick J. Leahy
The Honorable Arlen Specter
The Honorable John Conyers, Jr.
The Honorable Lamar S. Smith
Attachment: As stated
UNCLASSIFIED
Sec. 401. DEFINITION OF ELECTRONIC SURVEILLANCE.
Subsection (f) of section 101 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801) is amended by
inserting after subsection (f)(4) the following:
"Provided, that nothing in this definition shall be
construed to encompass surveillance directed at a person
reasonably believed to be located outside of the United
States."
SEC. 402. AUTHORIZATION FOR THE ACQUISITION OF CERTAIN
FOREIGN INTELLIGENCE INFORMATION.
Title I of the Foreign Intelligence Surveillance Act is
amended by adding after section 102 (50 U.S.C. ยง 1802) the
following:
"AUTHORIZATION FOR ACQUISITION OF FOREIGN INTELLIGENCE
INFORMATION
"SEC. 102A. (a) IN GENERAL.--Notwithstanding any other law,
the President, acting through the Attorney General may, for
periods of up to one year, authorize the acquisition of
foreign intelligence information concerning persons
reasonably believed to be outside the United States if the
Attorney General certifies in writing under oath that the
Attorney General has determined that --
"(1) the acquisition does not constitute electronic
surveillance;
"(2) the acquisition involves obtaining the foreign
intelligence information from or with the assistance
of a communications service provider, custodian, or
other person (including any officer, employee, agent,
or other specified person of such service provider,
custodian, or other person) who has access to
communications, either as they are transmitted or
while they are stored, or equipment that is being or
may be used to transmit or store such communications;
"(3) a significant purpose of the acquisition is to
obtain foreign intelligence information; and
"(4) the minimization procedures to be used with
respect to such acquisition activity meet the
definition of minimization procedures under section
101(h).
"(b) SPECIFIC PLACE NOT REQUIRED.--A
certification 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.
"(c) SUBMISSION OF CERTIFICATION.--The Attorney
General shall immediately transmit under seal to the court
established under section 103(a) a copy of a certification
made under subsection (a). Such certification shall be
maintained under security measures established by the Chief
Justice of the United States and the Attorney General, in
consultation with the Director of National Intelligence,
and shall remain sealed unless the certification is
necessary to determine the legality of the acquisition
under section 102B.
"(d) MINIMIZATION PROCEDURES.--An acquisition
under this section may be conducted only in accordance with
the certification of the Attorney General and the
minimization procedures adopted by the Attorney General.
The Attorney General shall assess compliance with such
procedures and shall report such assessments to the
Permanent Select Committee on Intelligence of the House of
Representatives and the Select Committee on Intelligence of
the Senate under section 108(a).
"DIRECTIVES RELATING TO ELECTRONIC SURVEILLANCE AND OTHER
ACQUISITIONS OF FOREIGN INTELLIGENCE INFORMATION
"SEC. 102B. (a) DIRECTIVE.--With respect to an
authorization of an acquisition under section 102A, the
Attorney General may direct a person to
"(1) immediately provide the Government with all
information, facilities, and assistance necessary to
accomplish the acquisition of foreign intelligence
information in such a manner as will protect the
secrecy of the acquisition and produce a minimum of
interference with the services that such person is
providing to the target; and
"(2) maintain under security procedures approved by
the Attorney General and the Director of National
Intelligence any records concerning the acquisition or
the aid furnished that such person wishes to maintain.
"(b) COMPENSATION.--The Government shall
compensate, at the prevailing rate, a person for providing
information, facilities, or assistance pursuant to
subsection (a).
"(c) FAILURE TO COMPLY.--In the case of a failure
to comply with a directive issued pursuant to subsection
(a), the Attorney General may invoke the aid of the court
established under section 103(a) to compel compliance with
the directive. The court shall issue an order requiring the
person to comply with the directive if it finds that the
directive was issued in accordance with subsection (a) and
is otherwise lawful. 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.
"(d) REVIEW OF PETITIONS.--(1) (A) A person
receiving a directive issued pursuant to subsection (a) may
challenge the legality of that directive by filing a
petition with the pool established under section 103(e)(1).
"(B) The presiding judge designated pursuant to
section 103(b) shall assign a petition filed
under subparagraph (A) to one of the judges
serving in the pool established by section
103(e)(1). Not later than 48 hours after the
assignment of such petition, the assigned judge
shall conduct an initial review of the directive.
If the assigned judge determines that the
petition is frivolous, the assigned judge shall
immediately deny the petition and affirm the
directive or any part of the directive that is
the subject of the petition. If the assigned
judge determines the petition is not frivolous,
the assigned judge shall, within 72 hours,
consider the petition in accordance with the
procedures established under section 103(e) (2)
and provide a written statement for the record of
the reasons for any determination under this
subsection.
"(2) A judge considering a petition to modify or set
aside a directive may grant such petition only if the
judge finds that such directive does not meet the
requirements of this section or is otherwise unlawful.
If the judge does not modify or set aside the
directive, the judge shall immediately affirm such
directive, and order the recipient to comply with such
directive.
"(3) Any directive not explicitly modified or set
aside under this subsection shall remain in full
effect.
"(e) APPEALS.--The Government or a person
receiving a directive reviewed pursuant to subsection (d)
may file a petition with the Court of Review established
under section 103(b) for review of the decision issued
pursuant to subsection (d) not later than 7 days after the
issuance of such decision. Such court of review shall have
jurisdiction to consider such petitions and shall provide
for the record a written statement of the reasons for its
decision. On petition for a writ of certiorari by the
Government or any person receiving such directive, the
record shall be transmitted under seal to the Supreme
Court, which shall have jurisdiction to review such
decision.
"(f) PROCEEDINGS.--Judicial proceedings under
this section shall be concluded as expeditiously as
possible. The record of proceedings, including petitions
filed, orders granted, and statements of reasons for
decision, shall be maintained under security measures
established by the Chief Justice of the United States, in
consultation with the Attorney General and the Director of
National Intelligence.
"(g) SEALED PETITIONS.--All petitions under this
section shall be filed under seal. In any proceedings under
this section, the court shall, upon request of the
Government, review ex parte and in camera any Government
submission, or portions of a submission, which may include
classified information.
"(h) LIABILITY.--No cause of action shall lie in
any court against any person for providing any information,
facilities, or assistance in accordance with a directive
under this section.
"(i) RETENTION OF DIRECTIVES AND ORDERS.--A
directive made or an order granted under this section shall
be retained for a period of not less than 10 years from the
date on which such directive or such order is made.".
(b) 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 inserting after
the item relating to section 102 the following:
"102A. Authorization for acquisition of foreign
intelligence information.
"102B. Directives relating to electronic surveillance
and other acquisitions of
foreign intelligence information.
SEC. 403. TECHNICAL AMENDMENT AND CONFORMING AMENDMENTS.
Section 103(e) of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1801 et seq.) is amended
(A)in paragraph (1), by striking "501(f)(1)" and
inserting "10213(d) or 501(f)(1)"; and
(B)in paragraph (2), by striking "501(f)(1)" and
inserting "10213(d) or 501(f)(1)".
SEC. 404. EFFECTIVE DATE.
(a)Except as otherwise provided, the amendments made by
this Act shall take effect immediately after the date of
the enactment of this Act.
(b)Notwithstanding any other provision of this Act, any
order in effect on the date of enactment of this Act issued
pursuant to the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1801 et seq.) shall remain in effect until
the date of expiration of such order, and, at the request
of the applicant, the court established under section 103
(a) of such Act (50 U.S.C. 1803(a)) may reauthorize such
order as long as the facts and circumstances continue to
justify issuance of such order under the provisions of the
Foreign Intelligence Surveillance Act of 1978, as in effect
on the day before the applicable effective date of this
Act. The court established under section 103(a) of such Act
shall extinguish any such order at the request of the
applicant.
SEC. 405. CLARIFICATION ON THE DEFINITION OF ELECTRONIC
SURVEILLANCE.
The Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801) is hereby amended by adding a new section 112
as follows:
"Section 112. Clarifications on the Definition of
Electronic Surveillance. (1) Whenever a member of the
Intelligence Community, as defined in section 3 of the
National Security Act of 1947 (50 U.S.C. 401a), as
amended, intentionally acquires the communications of
a non-U.S. person reasonably believed to be located
outside the United States and the primary purpose of
such acquisition to acquire the communications of a
particular, known person reasonably believed to be
located in the United States, such activities shall be
considered "electronic surveillance" as defined in
section 101(f) (1)."
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