Terrorist Surveillance Act of 2006: S. 3931 and Title II of S. 3929, the Terrorist Tracking, Identification, and Prosecution Act of 2006

Terrorist Surveillance Act of 2006: S. 3931 and
Title II of S. 3929, the Terrorist Tracking,
Identification, and Prosecution Act of 2006
Updated January 18, 2007
Elizabeth B. Bazan
Legislative Attorney
American Law Division



Terrorist Surveillance Act of 2006: S. 3931 and Title II
of S. 3929, the Terrorist Tracking, Identification, and
Prosecution Act of 2006
Summary
In the wake of disclosures related to the National Security Agency’s Terrorism
Surveillance Program (TSP), congressional attention has been focused on issues
regarding authorization, review, and oversight of electronic surveillance programs
designed to acquire foreign intelligence information or to address internationalth
terrorism. A number of legislative approaches were considered in the 109 Congress,
and three related bills have been introduced to date in the 110th Congress: H.R. 11,
S. 187, and S. 139. In a January 17, 2007, letter to Chairman Leahy and Senator
Specter of the Senate Judiciary Committee, Attorney General Gonzales advised them
that, on January 10, 2007, a Foreign Intelligence Surveillance Court (FISC) judge
“issued orders authorizing the Government to target for collection international
communications into or out of the United States where there is probable cause to
believe that one of the communicants is a member or agent of al Qaeda or an
associated terrorist organization.” In light of these orders, which “will allow the
necessary speed and agility,” he stated that all surveillance previously occurring
under the TSP will now be conducted subject to the approval of the FISC. He
indicated further that the President has determined not to reauthorize the TSP when
the current authorization expires.
Among the foreign intelligence surveillance bills introduced in the 109th
Congress were S. 3931, the Terrorist Surveillance Act of 2006, and S. 3929, the
Terrorist Tracking, Identification, and Prosecution Act of 2006, Title II of which
parallels S. 3931. The bills would create a new Title VII of the Foreign Intelligence
Surveillance Act of 1978, as amended (FISA), 50 U.S.C. § 1801 et seq., to address
electronic surveillance programs. In addition, the measures would amend other
provisions of FISA dealing with electronic surveillance without a warrant pursuant
to an Attorney General certification, applications for a Foreign Intelligence
Surveillance Court orders authorizing electronic surveillance for foreign intelligence
purposes, the contents of such orders, emergency electronic surveillance under FISA,
limitations on liability for those who aid the federal government in connection with
electronic surveillance to obtain foreign intelligence information, and applicable
congressional oversight. The bills would repeal the current wartime authorities for
electronic surveillance without a warrant following a congressional declaration of
war. Changes would be made to the FISA definitions of “electronic surveillance”
and “agent of a foreign power,” among others. Other provisions would modify the
criminal provisions of FISA and the exclusivity clause 18 U.S.C. § 2511(2)(f). Still
other provisions amend FISA to address those who engage in the development or
proliferation of weapons of mass destruction and to accommodate the international
movements of targets of electronic surveillance under FISA. This report discusses
the provisions of S. 3931 and Title II of S. 3929, and notes the changes to existing
law that these measures would make if enacted. The 110th Congress may choose to
consider similar or different legislative approaches to these issues, or to forego
legislation in light of the FISC orders and the anticipated termination of the TSP,
while continuing congressional oversight. This report will not be updated.



Contents
In troduction ......................................................1
Summary of Changes to Existing Law..................................5
New Title VII of the Foreign Intelligence Surveillance Act (FISA) —
Electronic Surveillance Programs.............................5
Foreign Intelligence Surveillance Court (FISC) Jurisdiction.........5
Mandatory transfer of certain cases............................6
Applications for approval of electronic surveillance programs.......8
Approval of electronic surveillance programs by the FISC..........9
Congressional oversight of electronic surveillance programs
authorized under new Title VII of FISA...................10
Clarification of the Foreign Intelligence Surveillance Act of 1978.......10
Repeal of wartime authorities under FISA.....................10
Clarifying amendments to 18 U.S.C. §§2511(2)(e) and (f) and to
criminal provisions in Section 109 of FISA................11
Modernizing Amendments to FISA...............................12
Definitions ..............................................12
Electronic surveillance without a court order to acquire
foreign intelligence information pursuant to Attorney General
certification .........................................15
Acquisition of foreign intelligence information for up to one
year concerning persons outside the United States upon
Attorney General certification...........................16
Limitation on liability.....................................18
Use or disclosure of information acquired under Attorney
General authorization under Section 102 of FISA............18
Procedures for use or disclosure against an aggrieved person in a
federal, state, or local proceeding of information obtained or
derived from an acquisition under Section 102 of FISA ......18
Authority for federal officers who acquire foreign intelligence
information under Section 102 of FISA to consult with
federal or state law enforcement.........................20
Retention of Directives and Orders...........................20
Designation of FISC judges.................................20
Applications for FISC orders under Sec. 104 of FISA............20
Issuance of FISC order under Sec. 105 of FISA.................22
Use of information acquired by electronic surveillance under FISA..25
Congressional oversight under Sec. 108 of FISA regarding a
document management system for applications for FISC
orders authorizing electronic surveillance..................26
Amendments to FISA, Title I, Relating to Weapons of Mass
Destruction ..........................................26
Conforming Amendments to Titles I and III of FISA to
Accommodate International Movements of Targets..........28
Conforming Amendment to Table of Contents of FISA...............29



Terrorist Surveillance Act of 2006: S. 3931
and Title II of S. 3929, the Terrorist
Tracking, Identification, and Prosecution
Act of 2006
Introduction
In the wake of press reports that the National Security Agency (NSA) was
conducting a secret Terrorist Surveillance Program (TSP), a national debate emerged
about whether the program was subject to the Foreign Intelligence Surveillance Act
(FISA), whether the Administration needed additional authority to continue the
program, and how and whether Congress should oversee the program. The TSP
involved surveillance without a warrant or court order under FISA of international
communications of persons within the United States, where one party to the
communication is believed to be a member of al Qaeda, affiliated with al Qaeda, a
member of an organization affiliated with al Qaeda, or working in support of al
Qaeda. The Bush Administration asserted constitutional and statutory support for its
program.
The Terrorist Surveillance Act of 2006 was introduced by Senator Mitch
McConnell, for himself and Senator William H. Frist, on Friday, September 22,
2006, as a free-standing bill, S. 3931. On the same day, Senator McConnell, for
himself and Senator Frist, introduced S. 3929, the Terrorist Tracking, Identification
and Prosecution Act of 2006,1 Title II of which is the Terrorist Surveillance Act of


1 S. 3931 and Title II of S. 3929 appear to be substantively identical, but for differences in
section numbers, with one exception. In Sec. 205 of S. 3929, new Section 703 of the
Foreign Intelligence Surveillance Act of 1978, as amended (FISA), which sets out the
requirements for an application for Foreign Intelligence Surveillance Court (FISC)
authorization of electronic surveillance programs, there are two identical new subsections
703(a)(9) of FISA. Each indicates that such an application shall “include a statement of the
proposed minimization procedures[.]” Sec. 5 of S. 3931 does not have this duplication of
the subsection. In S. 3929, the Terrorist Surveillance Act of 2006 was combined with Title
I of that bill, the Military Commission Act of 2006. The Military Commission Act of 2006
was also introduced on September 22, 2006, as a free-standing measure, S. 3930. For
further information on military commission and detainee issues, see CRS Report RL31600,
The Department of Defense Rules for Military Commissions: Analysis of Procedural Rules
and Comparison with Proposed Legislation and the Uniform Code of Military Justice, by
Jennifer K. Elsea; CRS Report RL33180, Enemy Combatant Detainees: Habeas Corpus
Challenges in Federal Court, by Jennifer K. Elsea and Kenneth Thomas; CRS Report
RL33655, Interrogation of Detainees: Overview of the McCain Amendment, by Michael
John Garcia; and CRS Report RL33662, The War Crimes Act: Current Issues, by Michael
(continued...)

2006. These were among a series of bills introduced in the 109th Congress addressing
the authorization, review, and oversight of electronic surveillance programs designed
to acquire foreign intelligence or to provide information to assist in detecting and
preventing international terrorist threats to the United States. Three related bills have
been introduced to date in the 110th Congress: H.R. 11, S. 187, and S. 139.2
The Foreign Intelligence Surveillance Act, P.L. 95-511, Title I, October 25,
1978, 92 Stat. 1796, codified at 50 U.S.C. § 1801 et seq., as amended, provides a
statutory framework for the use of electronic surveillance, physical searches, pen
registers, and trap and trace devices to acquire foreign intelligence information.3 It


1 (...continued)
John Garcia.
2 Three related bills have been introduced to date in the 110th Congress: H.R. 11, the NSA
Oversight Act, introduced by Representative Schiff, for himself and Representative Flake,
Representative Van Hollen, Representative Inglis of South Carolina, Representative Inslee,
and Representative Mack, on January 4, 2007, and referred to the House Committee on the
Judiciary, and, in addition, to the House Permanent Select Committee on Intelligence, for
a period to be subsequently determined by the Speaker, in each case for consideration of
such provisions as fall within the jurisdiction of the committee concerned; S. 187, the
Foreign Intelligence Surveillance Oversight and Resource Enhancement Act of 2007,
introduced by Senator Specter on January 4, 2007, and referred to the Senate Committee on
the Judiciary; and S. 139, the Foreign Surveillance Expedited Review Act, introduced by
Senator Schumer on January 4, 2007, and referred to the Senate Committee on the Judiciary.
3 Under section 101(e) of FISA, 50 U.S.C. § 1801(e), “foreign intelligence information” is
defined to mean:
(1) information that relates to, and if concerning a United States person is
necessary to, the ability of the United States to protect against —
(A) actual or potential attack or other grave hostile acts of a foreign power
or an agent of a foreign power;
(B) sabotage or international terrorism by a foreign power or an agent of a
foreign power; or
(C) clandestine intelligence activities by an intelligence service or network
of a foreign power or by an agent of a foreign power; or
(2) information with respect to a foreign power or foreign territory that relates
to, and if concerning a United States person is necessary to —
(A) the national defense or the security of the United States; or
(B) the conduct of the foreign affairs of the United States.
“United States person” is defined in subsection 101(i) of FISA, 50 U.S.C. § 1801(c)
to mean “a citizen of the United States, an alien lawfully admitted for permanent residence
(as defined in section 1101(a)(20) of Title 8), an unincorporated association a substantial
number of members of which are citizens of the United States or aliens lawfully admitted
for permanent residence, or a corporation which is incorporated in the United States, but
does not include a corporation or an association which is a foreign power, as defined in
subsection (a)(1), (2), or (3) of this section.”
“International terrorism” is defined in subsection 101(c), 50 U.S.C. § 1801(c) to mean
activities that:
(continued...)

also provides statutory authority for the production of tangible things for an
investigation to obtain foreign intelligence information not concerning a U.S. person
or to protect against international terrorism or clandestine intelligence activities.4
While describing electronic surveillance under FISA as a valuable tool in combating
terrorism, the Bush Administration argued that it lacked the speed and agility to deal
with such terrorists or terrorist groups.5
In a January 17, 2007, letter to Chairman Leahy and Senator Specter of the
Senate Judiciary Committee, Attorney General Gonzales advised them that, on
January 10, 2007, a Foreign Intelligence Surveillance Court (FISC) judge “issued
orders authorizing the Government to target for collection international
communications into or out of the United States where there is probable cause to
believe that one of the communicants is a member or agent of al Qaeda or an
associated terrorist organization.” The Attorney General stated that, in light of these
orders, which “will allow the necessary speed and agility,” all surveillance previously
occurring under the TSP will now be conducted subject to the approval of the FISC.
He indicated further that, under these circumstances, the President has determined
not to reauthorize the TSP when the current authorization expires. The Attorney
General also noted that the Intelligence Committees had been briefed on the highly
classified details of the FISC orders and advised Chairman Leahy and Senator
Specter that he had directed the Acting Assistant Attorney General for the Office of


3 (...continued)
(1) involve violent acts or acts dangerous to human life that are a violation of the
criminal laws of the United States or of any State, or that would be a criminal
violation if committed within the jurisdiction of the United States or any State;
(2) appear to be intended —
(A) to intimidate or coerce a civilian population;
(B) to influence the policy of a government by intimidation or coercion; or
(C) to affect the conduct of a government by assassination or kidnapping;
and
(3) occur totally outside the United States, or transcend national boundaries in
terms of the means by which they are accomplished, the persons they appear
intended to coerce or intimidate, or the locale in which their perpetrators operate
or seek asylum.
“Sabotage” is defined in 50 U.S.C. § 1801(d) to mean “activities that involve a
violation of chapter 105 of Title 18, or that would involve such a violation if committed
against the United States.”
4 Under Sec. 106(a)(1) of FISA, 50 U.S.C. § 1861(a)(1), where such an investigation is of
a United States person, it may not be conducted “solely upon the basis of activities protected
by the first amendment to the Constitution.”
5 See U.S. DEPARTMENT OF JUSTICE, LEGAL AUTHORITIES SUPPORTING THE ACTIVITIES OF
THE NATIONAL SECURITY AGENCY DESCRIBED BY THE PRESIDENT 34 (January 19, 2005);
Letter of December 22, 2005, from Assistant Attorney General William E. Moschella to the
Honorable Pat Roberts, the Honorable John D. Rockefeller, IV, the Honorable Peter
Hoekstra, and the Honorable Jane Harman, at 5; Statements by Attorney General Alberto
Gonzales and General Michael Hayden, Principal Deputy Director for National Intelligence,
during December 19, 2005, Press Briefing available at [http://www.whitehouse.gov/
news/releases/2005/ 12/20051219-1.html ].

Legal Counsel and the Assistant Attorney General for National Security to provide
them a classified briefing on the details of the orders.
The NSA program has been challenged on legal and constitutional grounds. On
August 17, 2006, in one such lawsuit, American Civil Liberties Union v. National
Security Agency, Case No. 06-CV-10204 (E.D. Mich. August 17, 2006), U.S. District
Court Judge Anna Diggs Taylor held the program unconstitutional on the ground that
it violated the Administrative Procedures Act, the Separation of Powers doctrine, the
First and Fourth Amendments of the U.S. Constitution, the Foreign Intelligence
Surveillance Act (FISA), and Title III of the Omnibus Crime Control and Safe Streets
Act (Title III), and permanently enjoined the Terrorist Surveillance Program. The
decision has been appealed to the U.S. Court of Appeals for the Sixth Circuit. On
October 4, 2006, the Sixth Circuit stayed Judge Taylor’s August 17, 2006, judgment
and permanent injunction pending appeal, American Civil Liberties Union v.
National Security Agency, Docket Nos. 06-2140 and 06-2095 (6th Cir. Oct. 4, 2006).
The docket sheets for both Nos. 06-2140 and 06-2095 indicate that a letter from the
attorneys for the appellants was filed on January 18, 2007, notifying the court
“concerning a letter from the Attorney General’s Office regarding orders issued by
the Foreign Intelligence Surveillance Court.”
S. 3931 and Title II of S. 3929 would create a new Title VII of the Foreign
Intelligence Surveillance Act of 1978, as amended (FISA), 50 U.S.C. § 1801 et seq.,
to address electronic surveillance programs. In addition, the measures would amend
other provisions of FISA dealing with electronic surveillance without a warrant
pursuant to an Attorney General certification, applications for a Foreign Intelligence
Surveillance Court orders authorizing electronic surveillance for foreign intelligence
purposes, the contents of such orders, emergency electronic surveillance under FISA,
limitations on liability for those who aid the federal government in connection with
electronic surveillance to obtain foreign intelligence information, and applicable
congressional oversight. The bills would repeal the current wartime authorities for
electronic surveillance without a warrant following a congressional declaration of
war. Changes would be made to the FISA definitions of “electronic surveillance”
and “agent of a foreign power,” among others. Other provisions would modify the
criminal provisions of FISA and the exclusivity clause 18 U.S.C. § 2511(2)(f). Still
other provisions amend FISA to address those who engage in the development or
proliferation of weapons of mass destruction and to accommodate the international
movements of targets of electronic surveillance under FISA. This report will discuss
the substantive provisions of the Terrorist Surveillance Act of 2006 and their impact
on existing law.



Summary of Changes to Existing Law
New Title VII of the Foreign Intelligence Surveillance Act
(FISA) — Electronic Surveillance Programs
Foreign Intelligence Surveillance Court (FISC) Jurisdiction. Sec. 3
of S. 3931, Sec. 203 of S. 3929, creates a new Title VII6 in FISA, which deals with
electronic surveillance programs. “Electronic surveillance program” is defined under
the new Section 701 of FISA to mean “a program to engage in electronic
surveillance”:
(A) that has as a significant purpose the gathering of foreign intelligence7
information or protecting against international terrorism;
(B) where it is not feasible to name every person, address, or location to be
subjected to electronic surveillance;
(C) where effective gathering of foreign intelligence information requires the
flexibility to begin electronic surveillance immediately after learning of suspect
activity; and
(D) where effective gathering of foreign intelligence information requires an
extended period of electronic surveillance.
Under Sec. 4 of S. 3931, Sec. 204 of S. 3929, a new Section 702(a) of FISA
would vest jurisdiction in the FISC to review, authorize, and reauthorize such
electronic surveillance programs to obtain foreign intelligence information or to
protect against international terrorism. Under this subsection, an initial authorization
of an electronic surveillance program may be for up to 90 days, while a
reauthorization may be for a period of time not longer than the FISC determines to
be reasonable. If the FISC denies an application for authorization or reauthorization
of an electronic surveillance program, the Attorney General may submit an unlimited
number of new applications seeking approval of the program or, in the alternative,


6 The current Title VII of FISA would then be redesignated Title VIII.
7 “Foreign intelligence information” is defined in new Sec. 701(4) of FISA to have “the
same meaning as in section 101(e) of FISA [current 50 U.S.C. § 1801(e),], and includes
information necessary to protect against international terrorism.” Currently, under FISA,
the term means:
(1) information that relates to, and if concerning a United States person is
necessary to, the ability of the United States to protect against —
(A) actual or potential attack or other grave hostile acts of a foreign power
or an agent of a foreign power;
(B) sabotage or international terrorism by a foreign power or an agent of a
foreign power; or
(C) clandestine intelligence activities by an intelligence service or network
of a foreign power or by an agent of a foreign power; or
(2) information with respect to a foreign power or foreign territory that relates
to, and if concerning a United States person is necessary to —
(A) the national defense or the security of the United States; or
(B) the conduct of the foreign affairs of the United States.

may appeal the decision of the FISC to the Foreign Intelligence Surveillance Court
of Review (FIS Court of Review).
If, at any time, the Attorney General determines that the known facts and
circumstances relating to any target within the United States who is being surveilled
under Title VII of FISA satisfy the criteria for an application for electronic
surveillance of that target under Section 104 of Title I of FISA, 50 U.S.C. § 1804,
then the Attorney General would be required to discontinue the surveillance of that
target under the electronic surveillance program authorized under Title VII of FISA,
unless certain conditions are met. The Attorney General could continue surveillance
under Title VII only if, as soon as he determines practicable after he makes the
determination to continue the surveillance of the target under Title VII, he makes an
application under Section 104 of FISA for an FISC order authorizing electronic
surveillance of the target under Section 105 of FISA, 50 U.S.C. § 1805. New Section

702(a)(4) of FISA, Sec. 4(a) of S. 3931, Sec. 204(a) of S. 3929.


Mandatory transfer of certain cases. The bills also authorize the transfer
from any other court of cases involving a challenge to the legality of classified
communications intelligence activity relating to a foreign threat, including an
electronic surveillance program, or cases in which the legality of any such activity or
program is at issue. Such a transfer would be triggered by the filing by the Attorney
General of an affidavit under oath that the case should be transferred to the FIS Court
of Review, because further proceedings in the originating court would harm the
national security of the United States. Under the proposed language in new Section
702(b)(1) of FISA, Sec. 4(a) of S. 3931, Sec. 204(a) of S. 3929, when such an
affidavit is filed, originating court must transfer the case. While the implication of
the Attorney General’s affidavit may be that the transfer from the originating court
would be to the FIS Court of Review, this is not clear from the language of proposed
subsection 702(b)(1), which states “the originating court shall transfer the case of the
Foreign Intelligence Surveillance for further proceedings under this subsection.” As
written, it appears that some words may be missing from this clause.
This uncertainty is increased by the language in proposed subsection 702(b)(2)
of FISA, entitled “Procedures for Review.” In this subsection, the FISC, rather than
the FIS Court of Review, is given jurisdiction as appropriate to determine standing
and to determine the legality of the program to the extent necessary for resolution of8
the underlying case. If the FISC determines, in the context of a criminal proceeding,


8 Subsection 702(b)(2) indicates that “all proceedings under this paragraph” are to be
conducted in accordance with the procedures set forth in Section 106(f) of FISA, 50 U.S.C.
§ 1806(f), which currently provides:
(f) In camera and ex parte review by district court
Whenever a court or other authority is notified pursuant to subsection (c) or (d)
of this section, or whenever a motion is made pursuant to subsection (e) of this
section, or whenever any motion or request is made by an aggrieved person
pursuant to any other statute or rule of the United States or any State before any
court or other authority of the United States or any State to discover or obtain
(continued...)

that the U.S. Constitution would require disclosure of national security information,
any such disclosure would be governed by the Classified Information Procedures Act,
18 U.S.C. App. 3, or, if applicable, 18 U.S.C. § 2339B(f).9 Under proposed
subsection 702(b)(3), entitled, “Appeal, Certiorari, and Effects of Decisions,” any
decision of the FISC under proposed subsections 702(b)(1) and (2) would be subject
to review by the FIS Court of Review under section 103(b) of FISA, 50 U.S.C. §
103(b).10 Under new subsection 702(b)(3), the United States may seek review of
decisions by the FIS Court of Review on certiorari to the U.S. Supreme Court.
Otherwise, the decision of the FISC would be binding in all other courts.
Under new subsection 702(b)(4), the FISC or the originating court may dismiss
a challenge to the legality of an electronic surveillance program for any reason
provided for under law. All litigation privileges are preserved under new subsection

702(b)(5).


8 (...continued)
applications or orders or other materials relating to electronic surveillance or to
discover, obtain, or suppress evidence or information obtained or derived from
electronic surveillance under this chapter, the United States district court or,
where the motion is made before another authority, the United States district
court in the same district as the authority, shall, notwithstanding any other law,
if the Attorney General files an affidavit under oath that disclosure or an
adversary hearing would harm the national security of the United States, review
in camera and ex parte the application, order, and such other materials relating
to the surveillance as may be necessary to determine whether the surveillance of
the aggrieved person was lawfully authorized and conducted. In making this
determination, the court may disclose to the aggrieved person, under appropriate
security procedures and protective orders, portions of the application, order, or
other materials relating to the surveillance only where such disclosure is
necessary to make an accurate determination of the legality of the surveillance.
9 The Classified Information Procedures Act, 18 U.S.C. App. 3, and 18 U.S.C. § 2339B(f)
provide procedures for the use and handling of classified procedures in the context of
criminal proceedings and civil proceedings brought by the United States under 18 U.S.C.
§ 2339B, respectively.
10 Current Section 103(b) of FISA deals with the creation of the FIS Court of Review, to
which is given jurisdiction to review a denial of an application for a court order under FISA.
If the FIS Court of Review determines that an application was properly denied, the United
States Government may seek review of the denial on petition for a writ of certiorari to the
U.S. Supreme Court. It states:
(b) Court of review; record, transmittal to Supreme Court
The Chief Justice shall publicly designate three judges, one of whom shall be
publicly designated as the presiding judge, from the United States district courts
or courts of appeals who together shall comprise a court of review which shall
have jurisdiction to review the denial of any application made under this chapter.
If such court determines that the application was properly denied, the court shall
immediately provide for the record a written statement of each reason for its
decision and, on petition of the United States for a writ of certiorari, the record
shall be transmitted under seal to the Supreme Court, which shall have
jurisdiction to review such decision.

Applications for approval of electronic surveillance programs.
Under Sec. 5 of S. 3931, Sec. 205 of S. 3929, a new Section 703 of FISA is created,
which sets out the requirements for applications for approval of electronic
surveillance programs, including resubmission of applications or applications for11
reauthorization of such programs. Subsection 703(b) authorizes the FISC to require


11 Such an application would be:
(1) made by the Attorney General or his designee;
(2) include a statement of the authority conferred on the Attorney General by the
President of the United States;
(3) include a statement setting forth the legal basis for the conclusion by the
Attorney General that the electronic surveillance program is consistent with the
Constitution of the United States;
(4) certify that a significant purpose of the electronic surveillance program is to
obtain foreign intelligence information or to protect against international
terrorism;
(5) certify that the information sought cannot reasonably be obtained by normal
investigative techniques[;]
(6) certify that the information sought cannot reasonably be obtained through an
application under section 104;
(7) include a statement of the means and operational procedures by which the
electronic surveillance will be executed and effected;
(8) include an explanation of how the electronic surveillance program is
reasonably designed to ensure that the communications that are acquired are
communications of or with —
(A) a foreign power that engages in international terrorism or activities in
preparation therefor;
(B) an agent of a foreign power that engages in international terrorism or
activities in preparation therefor;
(C) a person reasonably believed to have communication with or be
associated with a foreign power that engages in international terrorism or
activities in preparation therefor or an agent of a foreign power that
engages in international terrorism or activities in preparation therefor; or
(D) a foreign power that poses an imminent threat of attack likely to cause
death, serious injury, or substantial economic damage to the United States,
or an agent of a foreign power thereof;
(9) include a statement of the proposed minimization procedures;
(10) if the electronic surveillance program that is the subject of the application
was initiated prior to the date the application was submitted, specify the date that
the program was initiated;
(11) include a description of all previous applications that have been made under
this title involving the electronic surveillance program in the application
(including the minimization procedures and the means and operations procedures
proposed) and the decision on each previous application; and
(12) include a statement of facts concerning the implementation of the electronic
surveillance program described in the application, including, for any period of
operation of the program authorized not less than 90 days prior to the date of
submission of the application —
(A) the minimization procedures implemented; and
(B) the means and operational procedures by which the electronic
surveillance was executed and effected.

the Attorney General to furnish such other information as may be necessary for the
court to make a determination under new section 704.
Approval of electronic surveillance programs by the FISC. Sec. 6 of
S. 3931, Sec. 206 of S. 3929, creates a new subsection 704 addressing the necessary
findings for and contents of an ex parte FISC order approving an electronic12
surveillance program as requested or as modified. In part, the court must find that
approval of the electronic surveillance program in the application is consistent with
the U.S. Constitution. New subsection 704(b) of FISA identifies the factors which
the FISC may consider in assessing the constitutionality of the program.13 Subsection14


704(c) of FISA sets out the contents of an order approving such a program.


12 The FISC must find that:
(1) the President has authorized the Attorney General to make the application for
electronic surveillance for foreign intelligence information or to protect against
international terrorism;
(2) approval of the electronic surveillance program in the application is
consistent with the Constitution of the United States;
(3) the electronic surveillance program is reasonably designed to ensure that the
communications that are acquired are communications of or with —
(A) a foreign power that engages in international terrorism or in activities
in preparation therefor;
(B) an agent of a foreign power that is engaged in international terrorism
or in activities in preparation therefor;
(C) a person reasonably believed to have communication with or be
associated with a foreign power that is engaged in international terrorism
or in activities in preparation therefor or an agent of a foreign power that
is engaged in international terrorism or in activities in preparation therefor;
or
(D) a foreign power that poses an imminent threat of attack likely to cause
death, serious injury, or substantial economic damage to the Untied States,
or an agent of a foreign power thereof;
(4) the proposes minimization procedures meet the definition of minimization
procedures under section 101(h); and
(5) the application contains all statements and certifications required by section

703.


13 Such factors include:
(1) whether the electronic surveillance program has been implemented in
accordance with the proposal by the Attorney General, by comparing —
(A) the minimization procedures proposed with the minimization
procedures actually implemented;
(B) the nature of the information sought with the nature of the information
actually obtained; and
(C) the means and operational procedures proposed with the means and
operational procedures actually implemented; and
(2) whether foreign intelligence information has been obtained through the
electronic surveillance program.
14 Under proposed subsection 704(c), an order approving an electronic surveillance program
(continued...)

Congressional oversight of electronic surveillance programs
authorized under new Title VII of FISA. Under Sec. 7 of S. 3931, Sec. 207 of
S. 3929, new Sec. 705 of FISA addresses congressional oversight. The Attorney
General is directed to submit a classified report at least every 180 days to the House
Permanent Select Committee on Intelligence and the Senate Select Committee on
Intelligence (the “congressional intelligence committees,” as defined in new Sec.
701(2) of FISA) on the activities during the previous 180 day period under any
electronic surveillance program authorized under new Title VII of FISA.15 Under
subsection 705(c), “Nothing in this title shall be construed to limit the authority or
responsibility of any committee of either House of Congress to obtain such
information as such committee may need to carry out its respective functions and
duties.”
Clarification of the Foreign Intelligence Surveillance Act of
1978
Sec. 8 of S. 3931, Sec. 208 of S. 3929, makes a series of amendments to FISA.
Repeal of wartime authorities under FISA. Sec. 8(a) of S. 3931, Sec.

208(a) of S. 3929, repeals Sections 111, 309, and 404 of FISA, 50 U.S.C. §§ 1811,


1829, and 1844, which respectively permit the President, through the Attorney


14 (...continued)
under this section shall direct —
(1) that the minimization procedures be followed;
(2) that, upon the request of the applicant, specified communication or other
common carriers, landlords, custodians, or other specified persons, furnish the
applicant forthwith with all information, facilities, or technical assistance
necessary to undertake the electronic surveillance program in such a manner as
will protect its secrecy and produce a minimum of interference with the services
that such carriers, landlords, custodians, or other persons are providing potential
targets of the electronic surveillance program;
(3) that any records concerning the electronic surveillance program or the aid
furnished or retained by such carriers, landlords, custodians, or other persons are
maintained under security procedures approved by the Attorney General and the
Director of National Intelligence; and
(4) that the applicant compensate, at the prevailing rate, such carriers, landlords,
custodians, or other persons for furnishing such aid.
15 Each report shall include a description of —
(1) the minimization procedures implemented;
(2) the means and operational procedures by which the electronic surveillance
program was executed and effected;
(3) significant decisions of the Foreign Intelligence Surveillance Court on
applications made under section 703;
(4) the total number of applications made for orders approving electronic
surveillance programs pursuant to this title; and
(5) the total number of orders applied for that have been granted, modified, or
denied.

General, to authorize electronic surveillance, physical searches, and the use of pen
register or trap and trace devices, without a court order to obtain foreign intelligence
information for up to 15 calendar days following a declaration of war by Congress.
Clarifying amendments to 18 U.S.C. §§2511(2)(e) and (f) and to
criminal provisions in Section 109 of FISA. In general, 18 U.S.C. § 2511
prohibits the interception of wire, oral, or electronic communications unless the
interception falls within one of a series of specific exceptions. Current 18 U.S.C. §§

2511(2)(e) and (2)(f) set out two of these exceptions.


Amendment to 18 U.S.C. § 2511(2)(e). Current 18 U.S.C. § 2511(2)(e)
provides, “Notwithstanding any other provision of this title or section 705 or 706 of
the Communications Act of 1934, it shall not be unlawful for an officer, employee,
or agent of the United States in the normal course of his official duty to conduct
electronic surveillance, as defined in section 101 of the Foreign Intelligence
Surveillance Act of 1978, as authorized by that Act.” As amended, subsection
2511(2)(e) would read, “Notwithstanding any other provision of this title or section
705 or 706 of the Communications Act of 1934, it shall not be unlawful for an
officer, employee, or agent of the United States in the normal course of his official
duty to conduct electronic surveillance under the Constitution or the Foreign
Intelligence Surveillance Act of 1978.”
Amendment to 18 U.S.C. § 2511(2)(f). Current 18 U.S.C. § 2511(2)(f),
often referred to as the “exclusivity” provision, states:
(f) Nothing contained in this chapter or chapter 121 or 206 of this title, or section
705 of the Communications Act of 1934, shall be deemed to affect the
acquisition by the United States Government of foreign intelligence information
from international or foreign communications, or foreign intelligence activities
conducted in accordance with otherwise applicable Federal law involving a
foreign electronic communications system, utilizing a means other than
electronic surveillance as defined in section 101 of the Foreign Intelligence
Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the
Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by
which electronic surveillance, as defined in section 101 of such Act, and the
interception of domestic wire, oral, and electronic communications may be
conducted.
Thus, under the current exclusivity provision in 18 U.S.C. § 2511(2)(f), electronic
surveillance is prohibited except when carried out under the provisions of FISA;
chapter 119, 18 U.S.C. §§ 2510 et seq. (which deals with interception of wire, oral,
or electronic communications); or chapter 121, 18 U.S.C. §§ 2701 et seq. (which
deals with stored wire and electronic communications and transactional records
access). As amended, 18 U.S.C. § 2511(2)(f) would read, “Nothing contained in this
chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act
of 1934, shall be deemed to affect the acquisition by the United States Government
of foreign intelligence information that is authorized under a Federal statute or the
Constitution of the United States.”
Amendments to Section 109 of FISA. The amendments to FISA in
Sec.8(b)(2) of S. 3931, Sec. 208(b)(2) of S. 3929, address Section 109 of FISA, 50



U.S.C. § 1809, which currently provides criminal sanctions for any person who
intentionally “(1) engages in electronic surveillance under color of law except as
authorized by statute; or (2) discloses or uses information obtained under color of law
by electronic surveillance, knowing or having reason to know that the information
was obtained through electronic surveillance not authorized by statute.” As amended
by Sec. 8(b)(2)(A) of S. 3931, Sec. 208(b)(2)(A) of S. 3929, a person would face
criminal liability if he or she: (1) intentionally engages in electronic surveillance
under color of law except as authorized by law; (2) intentionally discloses or uses
information obtained under color of law by electronic surveillance, knowing or
having reason to know that the information was obtained through electronic
surveillance not authorized by law; or (3) “knowingly discloses or uses information
obtained under color of law by electronic surveillance in a manner or for a purpose
not authorized by law.” (Italics indicate new language.) Under Sec. 8(b)(2)(B) of
S. 3931, Sec. 208(b)(2)(B) of S. 3929, the current penalties provided in Sec. 109(c)
of FISA, 50 U.S.C. § 1809(c) would be increased from a fine of up to $10,000 to a
fine of up to $100,000, while imprisonment would be increased from a term of up to

5 years to imprisonment for up to 15 years.


Modernizing Amendments to FISA
Sec. 9 of S. 3931, Sec. 209 of S. 3929, makes several additional amendments
to FISA.
Definitions. Sec. 9(b) of S. 3931, Sec. 209(b) of S. 3929, amends several of
the definitions in Sec. 101 of FISA, 50 U.S.C. § 1801.
Agent of a foreign power. Sec. 9(b)(1) of S. 3931, Sec. 209(b)(1) of S.
3929, expands the definition of “agent of a foreign power” under Sec. 101(b)(1) of
FISA, 50 U.S.C. § 1801(b)(1), to include a person other than a United States person16
who “otherwise is reasonably expected to possess, control, transmit, or receive
foreign intelligence information while that person is in the United States, provided


16 “United States person” is currently defined in Sec. 101(i) of FISA, 50 U.S.C. § 1801(i),
to mean
a citizen of the United States, an alien lawfully admitted for permanent residence
(as defined in section 1101(a)(20) of Title 8), an unincorporated association a
substantial number of members of which are citizens of the United States or
aliens lawfully admitted for permanent residence, or a corporation which is
incorporated in the United States, but does not include a corporation or an
association which is a foreign power, as defined in subsection (a)(1), (2), or (3)
of this section.
A “foreign power” as defined in subsections 101(a)(1), (2) or (3) of FISA, 50 U.S.C. §

1801(a)(1), (2), or (3) includes “(1) a foreign government or any component thereof,


whether or not recognized by the United States;” “(2) a faction of a foreign nation or
nations, not substantially composed of United States persons;” or “(3) an entity that is
openly acknowledged by a foreign government or governments to be directed and controlled
by such foreign government or governments.”

that the official making the certification required in section 104(a)(6) deems such
foreign intelligence information to be significant.” This definition would become
subsection 101(b)(1)(D) of FISA, 50 U.S.C. § 1801(b)(1)(D).
Electronic surveillance. Sec. 9(b)(2) of S. 3931, Sec. 209(b)(2) of S. 3929,
deletes the current definition of “electronic surveillance” under Sec. 101(f) of FISA,17
50 U.S.C. § 1801(f), and replaces it with a new definition. Under the new
definition, “electronic surveillance” would mean:
(1) the installation or use of an electronic, mechanical, or other surveillance
device for acquiring information by intentionally directing the surveillance at a
particular known person who is reasonably believed to be in the United States
under circumstances in which that person has a reasonable expectation of privacy
and a warrant would be required for law enforcement purposes; or
(2) the intentional acquisition of the contents of any communication under
circumstances in which a person has a reasonable expectation of privacy and a
warrant would be required for law enforcement purposes, and if both the sender
and all intended recipients are reasonably believed to be located within the
United States.
This appears to be a shorter, but more expansive definition than that under current
law.
Minimization procedures with respect to electronic surveillance.
Minimization procedures under FISA are designed to minimize the acquisition and
retention, and prohibit the dissemination of non-publicly available information


17 Under current Sec. 101(f) of FISA, 50 U.S.C. § 1801(f), “electronic surveillance” is
defined to mean:
(1) the acquisition by an electronic, mechanical, or other surveillance device of
the contents of any wire or radio communication sent by or intended to be
received by a particular, known United States person who is in the United States,
if the contents are acquired by intentionally targeting that United States person,
under circumstances in which a person has a reasonable expectation of privacy
and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of
the contents of any wire communication to or from a person in the United States,
without the consent of any party thereto, if such acquisition occurs in the United
States, but does not include the acquisition of those communications of computer
trespassers that would be permissible under section 2511(2)(i) of Title 18;
(3) the intentional acquisition by an electronic, mechanical, or other surveillance
device of the contents of any radio communication, under circumstances in
which a person has a reasonable expectation of privacy and a warrant would be
required for law enforcement purposes, and if both the sender and all intended
recipients are located within the United States; or
(4) the installation or use of an electronic, mechanical, or other surveillance
device in the United States for monitoring to acquire information, other than
from a wire or radio communication, under circumstances in which a person has
a reasonable expectation of privacy and a warrant would be required for law
enforcement purposes.

regarding unconsenting U.S. persons acquired during the course of electronic
surveillance or physical search for foreign intelligence purposes, consistent with the
need of the United States to obtain, produce, and disseminate foreign intelligence
information. Such procedures permit retention and dissemination to law enforcement
of evidence of criminal activity. Under these procedures, nonpublicly available
information which is not foreign intelligence information shall not be disseminated
in a manner that identifies any United States person, without such person’s consent,
unless such person’s identity is necessary to understand foreign intelligence
information or assess its importance. Current Sec. 101(h)(4) of FISA, 50 U.S.C. §
1801(h)(4), also includes minimization procedures applicable to any electronic
surveillance without a court order to acquire foreign intelligence information upon
Attorney General certification pursuant to Sec. 102(a) of FISA, 50 U.S.C. § 1802.
In that context, minimization procedures also encompass procedures requiring that
no contents of any communication to which a United States person is a party be
disclosed, disseminated, or used for any purpose or retained for longer than 72 hours
unless a court order under Sec. 105 of FISA, 50 U.S.C. § 1805, is obtained or unless
the Attorney General determines that the information indicates a threat of death or
serious bodily harm to any person. Subsection 104(h)(4) of FISA, 50 U.S.C. §

1801(h)(4), would be deleted by Sec. 9(b)(3) of S. 3931, Sec. 209(b)(3) of S. 3929,


and replaced with new language under which minimization procedures would
include:
(4) notwithstanding paragraphs (1), (2), and (3) [of Section 104(h) of FISA, 50
U.S.C. § 1804(h)], with respect to any electronic surveillance approved pursuant
to section 102 or 704, procedures that require that no contents of any
communication originated or sent by a United States person shall be disclosed,
disseminated, used or retained for longer than 7 days unless a court order under
section 105 is obtained or unless the Attorney General determines that the
information indicates a threat of death or serious bodily harm to any person.
Current definition of “wire communication” deleted. Under current
law, subsection 101(l) defines the term “wire communication” to mean “any
communication while it is being carried by a wire, cable, or other like connection
furnished or operated by any person engaged as a common carrier in providing or
operating such facilities for the transmission of interstate or foreign
communications.” Sec. 9(b)(4) of S. 3931, Sec. 209(b)(4) of S. 3929, would strike
this subsection.
Contents. The current definition of “contents” in subsection 101(n) of FISA,18

50 U.S.C. § 1801(n), would be replaced with a new definition. Under Sec. 9(b)(5)


of S. 3931, Sec. 209(b)(5) of S. 3929, “contents,” “when used with respect to a
communication, includes any information concerning the substance, symbols,
sounds, words, purport, or meaning of a communication, and does not include
dialing, routing, addressing, or signaling information.”


18 Under the current subsection 101(n) of FISA, “‘contents,’ when used with respect to a
communication, includes any information concerning the identity of the parties to such
communication or the existence, substance, purport, or meaning of that communication.”

Electronic surveillance without a court order to acquire foreign
intelligence information pursuant to Attorney General certification.
Section 102 of FISA, 50 U.S.C. § 1802, authorizes electronic surveillance without
a court order to acquire foreign intelligence information for up to one year upon
certification by the Attorney General in writing under oath that certain criteria have
been met.19 As amended by Sec. 9(c) of S. 3931, Sec. 209(c) of S. 3929, the
application under subsection 102(a)(1)(A)(i) of FISA, 50 U.S.C. § 1802(a)(1)(A)(i),
would be expanded to include, among other things, electronic surveillance directed
at (not “solely directed at”) the acquisition of the contents of communications of
foreign powers, as defined in Section 101(a)(1), (2), or (3) of FISA, 50 U.S.C. §
1801(a)(1), (2), or (3), or an agent of a foreign power other than a United States
person, as defined in subsection 101(b)(1) of FISA, 50 U.S.C. § 1801(b)(1).20 The
amendment also deletes a requirement in current Sec. 102(a)(1)(B) of FISA, 50
U.S.C. § 1801(a)(1)(B), that the Attorney General certify that “there is no substantial
likelihood that the surveillance will acquire the contents of any communication to
which a U.S. person is a party.”
Under both the current and amended versions of subsection 102(a)(2) of FISA,
50 U.S.C. § 1802(a)(2), an electronic surveillance authorized under subsection
102(a)(1) of FISA, 50 U.S.C. § 1802(a)(1), may only be conducted in accordance
with the Attorney General’s certification and applicable minimization procedures.
Both require the Attorney General to assess compliance with such procedures and to
report his assessments to the congressional intelligence committees under subsection
108(a) of FISA, 50 U.S.C. § 1808(a). Under the amended language, if such an
electronic surveillance is directed at an agent of a foreign power, the Attorney
General’s report assessing compliance with the minimization procedures must also
include a statement of the facts and circumstances relied upon to justify the belief
that the target of the electronic surveillance is an agent of a foreign power.
Under the current and amended subsection 102(a)(3) of FISA, 50 U.S.C. §
1802(a)(3), the Attorney General must immediately transmit under seal to the FISC
a copy of the applicable certification, which shall remain under seal unless certain
criteria are met.21
The current Sec.102(a)(4), 50 U.S.C. § 102(a)(4), permits the Attorney General
to direct a specified common carrier to provide any information, facilities, or


19 Current Sec. 102(a)(1) requires that the Attorney General certify in writing under oath
that “the electronic surveillance is solely directed at” the acquisition of the types of
information specified. As amended by Sec. 9(c) of S. 3931, Sec. 209(c) of S. 3929, the
word “solely” would be deleted.
20 Current law does not include the acquisition of the contents of communications of agents
of foreign powers. Under current law, the contents of communications acquired must be
transmitted by means of communications used exclusively between or among such foreign
powers.
21 The only difference between the current criteria and those included in subsection
103(a)(3) of FISA under the two bills here under consideration is the deletion of a reference
to section 101(h)(4), which is consistent with the earlier discussed deletion of the current

101(h)(4) and replacement with new language.



technical assistance necessary to accomplish an electronic surveillance authorized
under subsection 102(a) in a manner which will protect its secrecy and produce a
minimum of interference with the services such carrier is providing to its customers,
and to maintain any records the carrier wishes to retain concerning such surveillance
or the aid furnished with respect thereto under security procedures approved by the
Attorney General and the Director of National Security. This provision is absent
from the proposed subsection 102(a) of FISA, new 50 U.S.C. § 1802(a).
Acquisition of foreign intelligence information for up to one year
concerning persons outside the United States upon Attorney General
certification. The proposed subsection 102(b)(1) of FISA, Sec. 9(c) of S. 3931,
Sec. 209(c) of S. 3929, creates a new authority for the President, acting through the
Attorney General, to authorize the acquisition of foreign intelligence information for
periods of up to one year concerning a person reasonably believed to be outside the
United States if the Attorney General certifies in writing under oath that
(A) the acquisition does not constitute electronic surveillance as defined in
section 101(f);
(B) the acquisition involves obtaining the foreign intelligence information from
or with the assistance of a wire or electronic communications service provider,
custodian, or other person (including any officer, employee, agent, or other
specified person thereof) who has access to wire or electronic communications,
either as they are transmitted or while they are stored, or equipment that is being
or may be used to transmit or store such communications;
(C) a significant purpose of the acquisition is to obtain foreign intelligence
information; and
(D) the minimization procedures to be employed with respect to such acquisition
activity meet the definition of minimization procedures under section 101(h).
The certification need not identify the specific facilities, places, premises, or property
at which the acquisition will be directed. Compliance with the Attorney General’s
certification and minimization procedures would be required. The Attorney General
is also directed to report his assessments regarding compliance with such procedures
to the congressional intelligence committees under subsection 108(a) of FISA, 50
U.S.C. § 1808(a). A copy of the Attorney General’s certification would be
immediately transmitted to the FISC and there maintained under seal unless it is
necessary to determine the legality of the acquisition under proposed subsection22

102(o) of FISA.


Under the proposed subsection 102(c) of FISA, with respect to such an
acquisition, the Attorney General would be authorized to direct a specified person to
furnish the government with all information, facilities, and assistance needed to
accomplish the acquisition in a manner that will protect its secrecy and minimize
interference with the services that such a person is providing to the target. Any


22 New subsection 102(o) of FISA would permit an aggrieved person against whom evidence
obtained or derived from such an acquisition is to be or has been used or disclosed in a
federal, state, or local proceeding to move to suppress the evidence on the grounds that the
information was unlawfully acquired; or the acquisition was not made in conformity with
an order of authorization or approval.

records the person providing aid to the Government wishes to maintain must be kept
under security procedures approved by the Attorney General and the Director of
National Intelligence (DNI). New subsection 102(d) of FISA would require the
government to compensate the specified person furnishing the aid at the prevailing
rate.
If the person so directed fails to comply with the Attorney General’s directive
to provide such aid, then, under proposed subsection 102(e) of FISA, the Attorney
General could take recourse to the FISC to compel compliance with the directive.
Failure to obey the resulting FISC order could be punished as contempt of court.
Under the new subsection 102(f) of FISA, a person receiving such a directive
would have a right to challenge the legality of the directive by filing a petition with
the petition review pool of FISC judges established under subsection 103(e)(1) of
FISA.23 The petition must be immediately assigned by the FISC Presiding Judge to
one of the judges in the pool. Within 24 hours of the assignment of the petition, the
assigned judge must conduct an initial review of the directive. If the petition is
deemed frivolous, it must be immediately denied and the directive or portion of the
directive that is the subject of the petition must be affirmed. If the assigned judge
determines that the petition is not frivolous, the assigned judge must consider the
petition and make a written statement for the record of his determination and the
reasons underlying it for the record within 72 hours. A petition to modify or set aside
a directive may only be granted if the judge finds that the directive does not meet the
requirements of Section 102 or is otherwise unlawful. If the judge does not modify
or set aside the directive, he must immediately affirm it and order the recipient’s
compliance.
A petition to the FIS Court of Review, by the Government or any person
receiving such a directive seeking review of an FISC decision to affirm, modify, or
set aside the directive must be made within seven days of the issuance of the FISC
decision. The FIS Court of Review must provide for the record a written statement
of the reasons for its decision. The Government or any person receiving such a
directive seeking review of the FIS Court of Review decision may petition the U.S.
Supreme Court for a writ of certiorari. The FIS Court of Review must transmit its
record under seal to the Supreme Court. Proposed subsection 102(g) of FISA.
Judicial proceedings under Section 102 must be conducted expeditiously, and
the record of such proceedings, including petitions filed, orders granted, and
statements for reasons for decision, must be maintained under security measures
established by the Chief Justice of the United States in consultation with the Attorney
General and the DNI. Proposed subsection 102(h).


23 Under current subsection 103(e)(1) of FISA, 50 U.S.C. § 1803(e)(1), three FISC judges
who reside within 20 miles of the District of Columbia, or, if all of such judges are
unavailable, other judges of the court established under subsection (a) of this section as may
be designated by the presiding judge of such court, shall comprise a petition review pool
which shall have jurisdiction to review petitions filed pursuant to section 1861(f)(1) of this
title.

All petitions under this section are to be filed under seal. In proceedings under
Section 102 of FISA, upon request by the Government, any Government submissions
or portions of submissions, which may contain classified information, may be
reviewed by the court ex parte and in camera. Proposed subsection 102(i).
Limitation on liability. Proposed subsection 102(j) of FISA would preclude
any cause of action in any court against any provider of a communication service or
other person (including any officer, employee, agent, or other specified person
thereof) for furnishing information, facilities, or assistance to the Government
pursuant to a directive under new subsections 102(a) or 102(b).
Use or disclosure of information acquired under Attorney General
authorization under Section 102 of FISA. Under proposed subsection 102(k)
of FISA, information regarding a United States person, acquired pursuant to an
Attorney General authorization under Section 102 of FISA, 50 U.S.C. § 1802, may
be used or disclosed by federal officers and employees without the consent of that
United States person, only in accordance with minimization procedures required by
either subsection 102(a) or subsection 102(b), as applicable. Information acquired
under this section may be used or disclosed by federal officers or employees only for
lawful purposes. Under proposed subsection 102(l), no information acquired under
Section 102 shall be disclosed for law enforcement purposes unless the disclosure is
accompanied by a statement that “such information, or any information derived
therefrom, may only be used in a criminal proceeding with the advance authorization
of the Attorney General.” New subsection 102(k) also provides that no otherwise
privileged communication obtained in accordance with or in violation of Section 102
shall lose its privileged character.
Procedures for use or disclosure against an aggrieved person in
a federal, state, or local proceeding of information obtained or derived
from an acquisition under Section 102 of FISA . Proposed subsections
102(m) and (n) of FISA, respectively, provide procedures for use or disclosure of
such information in federal proceedings or in state or local proceedings.
Use or disclosure in federal proceedings. Under Sec. 9(c) of S. 3931,
Sec. 209(c) of S. 3929, the federal government may only introduce into evidence or
otherwise use or disclose information acquired by or derived from an acquisition
under Section 102 of FISA, 50 U.S.C. § 102, in any trial, hearing or other proceeding
in or before any court, department, officer, agency, regulatory body, or other authority
of the United States against an aggrieved person, if it complies with the requirements
of proposed subsection 102(m). Under this subsection, the Government, prior to the
proceeding or at a reasonable time prior to seeking to place the information in
evidence or otherwise to use or disclose the information, must notify the aggrieved
person and the court or other authority in which the information is to be used or
disclosed of the United States’ intent to do so.
Use or disclosure in state or local proceedings. Somewhat similarly,
under proposed subsection 102(n), a state or political subdivision may only introduce
into evidence or otherwise use or disclose information obtained by or derived from
a Section 102 acquisition, in any trial, hearing, or other proceeding in or before any
court, department, officer, agency, regulatory body, or other state or local authority,



against an aggrieved person, if the state or political subdivision notifies the aggrieved
person, the court or other authority in which the information is to be used or
disclosed, and the U.S. Attorney General, of the state or political subdivision’s intent
to so use or disclose the information.
Aggrieved person’s motion to suppress. An aggrieved person against
whom information acquired by or derived from a Section 102 acquisition is intended
to be used or disclosed in a federal, state, or local proceeding may move to suppress
the evidence so acquired or derived on one of two grounds: the information was
unlawfully acquired, or the acquisition was not made in conformity with an order of
authorization or approval. A motion to suppress is to be made before the trial,
hearing, or other proceeding involved unless there is no opportunity to make such a
motion or unless the person is not aware of the grounds of the motion. Proposed
subsection 102(o) of FISA.
Consideration by U.S. district court of the legality of an acquisition
upon Attorney General affidavit. Under proposed subsection 102(p) of FISA,
if the Attorney General files an affidavit under oath, pursuant to proposed subsection
102(b) of FISA, that disclosure or an adversary hearing would harm the national
security of the United States; then whenever a court or other authority is given notice
under subsections 102(m) or 102(n), a motion to suppress is filed under subsection
102(o), or a request is made by an aggrieved person under any other federal or state
statute or rule before a federal or state court or other authority, seeking to discover
or obtain an Attorney General directive or other materials related to a Section 102
acquisition, or seeking to discover, obtain, or suppress evidence or information
acquired by or derived from a Section 102 acquisition, the U.S. district court before
whom the matter is pending, or the U.S. district court in the same district as the other
authority before whom the motion is made, shall determine whether the acquisition
under Section 102 was lawfully conducted and authorized. The U.S. district court
may review in camera and ex parte the Attorney General’s directive and other
materials related to the Section 102 acquisition necessary to making its
determination. The court may disclose to the aggrieved person, under appropriate
security procedures and protective orders, portions of the directive or other related
materials only where such disclosure is necessary to an accurate determination of the
legality of the acquisition.
Under proposed subsection 102(q) of FISA, if the U.S. district court were to find
that an acquisition authorized under Section 102 of FISA was not lawfully authorized
or conducted, the evidence thereby unlawfully obtained or derived would be
suppressed. If the U.S. district court were to determine that the acquisition was
lawfully authorized and conducted, the court would deny the aggrieved person’s
motion except to the extent that due process requires discovery or disclosure. Any
orders granting motions or requests under subsection 102(o), decisions holding that
a Section 102 authorization was not lawfully authorized or conducted, or U.S. district
court orders requiring review or granting disclosure of directives or materials related
to a Section 102 acquisition, would be binding on all other federal or state courts
except a U.S. court of appeals or the U.S. Supreme Court. Proposed subsection

102(r) of FISA.



Authority for federal officers who acquire foreign intelligence
information under Section 102 of FISA to consult with federal or state
law enforcement. Federal officers who acquire foreign intelligence information
pursuant to Section 102 of FISA, 50 U.S.C. § 1802, may consult with federal law
enforcement officers or state or local law enforcement personnel to coordinate efforts
to investigate or protect against
(1) actual or potential attack or other grave hostile acts of a foreign power or an
agent of a foreign power;
(2) sabotage, international terrorism, or the development or proliferation of
weapons of mass destruction by a foreign power or an agent of a foreign power;
(3) clandestine intelligence activities by an intelligence service or network of a
foreign power or by an agent of a foreign power.
Such coordination would not preclude the certifications required under subsections

102(a) or (b). Proposed subsection 102(t).


Retention of Directives and Orders. Under proposed subsection 102(u),
directives made under Section 102 of FISA and orders granted under that section
must be retained for 10 years.
Designation of FISC judges. Under Sec. 9(d) of S. 3931, Sec. 209(d) of S.
3929, Sec. 103(a) of FISA is amended to authorize the Chief Justice of the United
States to publicly designate 11 district court judges from at least seven of the U.S.
judicial circuits to be FISC judges, of whom no fewer than three shall reside within
20 miles of the District of Columbia. A new subsection 103(g) would also be added
to FISA providing express authority for applications for an FISC order under Title
I of FISA if the President has authorized the Attorney General in writing to approve
applications to the FISC. An FISC judge to whom an application is made is
explicitly authorized to grant an order under Section 105 of FISA approving
electronic surveillance of a foreign power or an agent of a foreign power for the
purpose of obtaining foreign intelligence information.
Applications for FISC orders under Sec. 104 of FISA. Sec. 9(e) of S.
3931, Sec. 209(e) of S. 3929, makes a series of amendments to Sec. 104 of FISA, 50
U.S.C. § 1804. Current subsections 104(a)(6) through (11) are deleted from FISA
and replaced by new subsections 104(a)(6) through (10). An application for a court
order to authorize electronic surveillance under FISA must contain, among other
things, a certification that certain requirements are met. Under current law, such
certification or certifications are made by the Assistant to the President for National
Security Affairs or an executive branch official or officials designated by the
President from among those executive officers employed in the area of national
security or defense and appointed by the President with the advice and consent of the
Senate. As amended, the certification would be made by “the Assistant to the
President for National Security Affairs or an executive branch official authorized by24


the President to conduct electronic surveillance for foreign intelligence purposes.”
24 As amended, such official must certify:
(continued...)

Under current law, subsection 104(b) of FISA, 50 U.S.C. § 1804(b) deals with
the exclusion of certain information from an application for a FISC order authorizing
electronic surveillance where the target is a foreign power as defined in subsection
101(a)(1), (2), or (3), and each of the facilities or places at which the surveillance is
directed is owned, leased, or exclusively used by that foreign power. In such
circumstances, the application currently is required to include a statement as to
whether physical entry is required to effect the surveillance, and to contain such
information about the surveillance techniques and communications or other
information concerning U.S. persons likely to be obtained as may be necessary to
assess the proposed minimization procedures. Sec. 9(e)(2) and (3) of S. 3931, Sec.

209(e)(2) and (3) of S. 3929, would strike current Sec. 104(b) of FISA, 50 U.S.C. §


1804(b), and redesignate subsections 104(c)-(e) as 104(b)-(d) of FISA.


Current subsection 104(e)(1)(A) (as redesignated above, subsection

104(d)(1)(A)) provides that, upon written request of the Director of the Federal


24 (...continued)
(A) that the certifying official deems the information sought to be foreign
intelligence information;
(B) that a significant purpose of the surveillance is to obtain foreign intelligence
information;
(C) that such information cannot reasonably be obtained by normal investigative
techniques; and
(D) including a statement of the basis for the certification that —
(i) the information sought is the type of foreign intelligence information
designated; and
(ii) such information cannot reasonably be obtained by normal investigative
techniques[.]
With respect to the matters that must be certified by this official, new subsections
104(a)(6)(A)-(C) are the same as current subsections 104(a)(7)(A)-(C). The new language
deletes a requirement in current subsection 104(a)(7)(D) that the application include a
certification from such an official that designates the type of foreign intelligence
information being sought according to the categories described in Sec. 101(e) of FISA. New
subsection 104(a)(6)(D) is the same as the current 104(a)(7)(E).
As amended, subsection 104(a)(7) of FISA requires that, an application for a court
order authorizing electronic surveillance must include “a statement of the period of time for
which the electronic surveillance is required to be maintained, and if the nature of the
intelligence gathering is such that the approval of the use of electronic surveillance under
this title should not automatically terminate when the described type of information has first
been obtained, a description of facts supporting the belief that additional information of the
same type will be obtained thereafter.” This language is the same as the current subsection

104(a)(10) of FISA, 50 U.S.C. § 1804(a)(10).


New subsection 104(a)(8) requires “a summary description of the nature of the
information sought and the type of communications or activities to be subject to the
surveillance.” Current subsection 104(a)(6) of FISA, 50 U.S.C. § 1804(a)(6) requires “a
detailed description” of such information. New subsection 104(a)(9) is similar to current
subsection 104(a)(9) of FISA, 50 U.S.C. § 1804(a)(9), except that current law requires “a
statement,” while the amended language requires “a summary statement.” New subsection

104(1)(10) is similar to current subsection 104(a)(8) of FISA, 50 U.S.C. § 1804(a)(8),


except that current law requires “a statement,” while the new language requires “a summary
statement.”

Bureau of Investigation, the Secretary of Defense, the Secretary of State, or the
Director of National Intelligence, the Attorney General shall personally review under
subsection 104(a), 50 U.S.C. § 1804(a) an application under that subsection for a
target described in section 101(b)(2) of FISA, 50 U.S.C. § 1801(b)(2).25 New
subsection 104(d)(1)(A) would expand this list to include the Director of the Central
Intelligence Agency.
Issuance of FISC order under Sec. 105 of FISA. Sec. 9(f) of S. 3931,
Sec. 209(f) of S. 3929, would amend Sec. 105 of FISA, 50 U.S.C. § 1805, in a
number of respects. Current subsection 105(a)(1) provides that, upon an application
under Sec. 104 of FISA, the FISC judge shall enter an ex parte order as requested or
as modified approving the electronic surveillance in the application if he finds that
“the President has authorized the Attorney General to approve applications for
electronic surveillance for foreign intelligence information.” As amended, this
subsection would be stricken and subsections 105(a)(2) through (a)(5) of FISA, 50
U.S.C. §§ 1805(a)(2) through (a)(5), would be redesignated subsections 105(a)(1)
through (a)(4), 50 U.S.C. §§ 1805(a)(1) through (a)(4).
Specifications to be included in a FISC order for electronic
surveillance. Current subsection 105(c)(1) of FISA, 50 U.S.C. § 1805(c)(1), which
deals with specifications to be included in an order approving electronic surveillance
under Sec. 105 of FISA, would also be deleted and replaced with a new subsection
105(c)(1), which includes in the following order the current subsections
105(c)(1)(A), (B), (E), (C) and (D), and deletes current requirements in subsections
105(c)(1)(F). The latter provision provides that an order approving electronic
surveillance under Section 105 of FISA, 50 U.S.C. § 1805, shall specify, “whenever
more than one electronic, mechanical, or other surveillance device is to be used under
the order, the authorized coverage of the devices involved and what minimization
procedures shall apply to information subject to acquisition by each device.”


25 Section 101(b)(2) of FISA, 50 U.S.C. § 1801(b)(2), sets out several categories of persons
who are defined to be “agents of foreign powers,” regardless of whether or not they are
United States persons. Under current law, these categories include any person who:
(A) knowingly engages in clandestine intelligence gathering activities for or on
behalf of a foreign power, which activities involve or may involve a violation of
the criminal statutes of the United States;
(B) pursuant to the direction of an intelligence service or network of a foreign
power, knowingly engages in any other clandestine intelligence activities for or
on behalf of such foreign power, which activities involve or are about to involve
a violation of the criminal statutes of the United States;
(C) knowingly engages in sabotage or international terrorism, or activities that
are in preparation therefor, for or on behalf of a foreign power;
(D) knowingly enters the United States under a false or fraudulent identity for or
on behalf of a foreign power or, while in the United States, knowingly assumes
a false or fraudulent identity for or on behalf of a foreign power; or
(E) knowingly aids or abets any person in the conduct of activities described in
subparagraph (A), (B), or (C) or knowingly conspires with any person to engage
in activities described in subparagraph (A), (B), or (C).

Current subsection 105(d) deals with the exclusion of certain information from
applications for court orders authorizing electronic surveillance where the target of
the surveillance is a foreign power as defined in Sec. 101(a)(1), (2), or (3), and each
facility or place to be surveilled is owned, leased, or exclusively used by that foreign
power. It also requires description of information sought, the communications to be
subject to surveillance, and the type of electronic surveillance involved, including
whether physical entry would be required. As amended, the current language would
be stricken and replaced with a requirement that, “Each order under this section
specify the type of electronic surveillance involved, including whether physical entry
is required.”
Extensions of orders for electronic surveillance under FISA. Under
current Section 105(e)(2), extensions of an order authorizing electronic surveillance
under Title I of FISA, 50 U.S.C. § 1801 et seq., may be granted on the same basis as
an original order upon an application for an extension and new findings made in the
same manner as required for an original order,26 with two exceptions. First, an
extension of an FISC order for a surveillance targeted against a foreign power that
is a foreign-based political organization, not substantially composed of United States
persons; or an entity that is directed and controlled by a foreign government or
governments; or targeted against a group engaged in international terrorism or
activities in preparation therefor that is not a United States person, may be for a
period not to exceed one year if the judge finds probable cause to believe that no
communication of any individual United States person will be acquired during the
period. Second, an extension of an order under FISA for a surveillance targeted
against an agent of a foreign power who is not a United States person may be for a
period not to exceed one year.
As amended, current subsection 105(e)(2), 50 U.S.C. § 105(e)(2) would be
stricken and replaced with a new subsection 105(e)(2), providing that extensions of
an order issued under Title I of FISA may be granted on the same basis as an original
order upon an application for an extension and new findings made in the same
manner as required for an original order and may be for a period not longer than the
court determines to be reasonable or one year, whichever is less.
Emergency authorization of electronic surveillance without a court
order. Current subsection 105(f), 50 U.S.C. § 1805(f), provides for emergency
authorization of electronic surveillance without a court order for up to 72 hours by
the Attorney General if he reasonably determines that an emergency situation exists
with respect to the employment of electronic surveillance to obtain foreign
intelligence information before an order authorizing such surveillance can, with due
diligence, be obtained; and that the factual basis for issuance of an order under this


26 Current subsection 105(e)(1) provides generally for electronic surveillance for the period
specified in the application or for up to 90 days, whichever is less; for the period specified
in the application or for up to 120 days, whichever is less, where the target is an agent of a
foreign power who is not a U.S. person; and for the period specified in the application or for
up to one year, for foreign power targets who are foreign governments or components
thereof; foreign nation or nations or factions thereof, not substantially composed of United
States persons; or entities openly acknowledged by a foreign government or governments
to be directed and controlled by such foreign government or governments.

title to approve such surveillance exists. The Attorney General or his designee must
notify an FISC judge of the emergency employment of electronic surveillance at the
time of its authorization. During this 72 hour window, a court order under Sec. 105
must be sought. Subsection 105(f) also currently requires termination of the
surveillance when the information sought is acquired, if a FISC order approving the
surveillance is denied, or at the end of the 72 hours, whichever is earliest; and
restricts use or disclosure of information acquired or derived from that surveillance
if a court order is not obtained.
Under Sec. 9(f)(5) of S. 3931, Sec. 209(f)(5) of S. 3929, the current subsection
105(f) of FISA, 50 U.S.C. § 1805(f) would be deleted and replaced with an new
subsection 105(f). While current law authorizes the Attorney General to determine
whether to authorize electronic surveillance without a court order on an emergency
basis if he reasonably determines that the requisite factors exist, the new language
would grant such authority to “an executive branch officer appointed by the President
with the advice and consent of the Senate who is authorized by the President to
conduct electronic surveillance.” The new language would require that the Attorney
General be informed of the emergency electronic surveillance. While current law
requires a FISC judge to be informed by the Attorney General or his designee at the
time of authorization of emergency electronic surveillance, the new law would
require such judge to be informed “as soon as practicable following such
authorization that the decision has been made to employ emergency electronic
surveillance.” New subsections 105(f)(2)(a) and (b).
Current law requires that an application for an FISC order authorizing electronic
surveillance be made to the FISC judge so notified within 72 hours of the
authorization of employment of emergency electronic surveillance. Under the new
provision, an application must be made to that FISC judge or another FISC judge as
soon as possible within seven days after the surveillance is authorized. Under current
subsection 105(f), in the absence of a judicial order approving such electronic
surveillance, the surveillance shall terminate when the information is obtained, when
the application for the order is denied, or after the expiration of 72 hours from the
time when the Attorney General approved the emergency electronic surveillance,
whichever is earliest. As amended, the period of 72 hours after the Attorney General
approved the emergency electronic surveillance would be replaced by one of seven
days after approval of the emergency electronic surveillance by an executive branch
officer appointed by the President with the advice and consent of the Senate who is
authorized by the President to conduct electronic surveillance. The restrictions on
disclosure and use of information obtained or derived from such an emergency
electronic surveillance in the absence of an authorizing court order parallel those in
existing law. While, under current law, if the Attorney General authorizes such
emergency employment of electronic surveillance, he shall require that the
minimization procedures required by this subchapter for the issuance of a judicial
order be followed, the revised language would provide that, “The official authorizing
the emergency employment of electronic surveillance shall require that the
minimization procedures required by this title for issuance of a court order be
followed.” New subsection 105(f)(1)(D) of FISA.
Limitations of liability for providers aiding in a FISA electronic
surveillance or physical search. Sec. 9(f) of S. 3931, Sec. 209(f) of S. 3929,



would also modify subsection 105(i) dealing with limitations of liability for those
who provide information, facilities, or technical assistance with respect to execution
of a FISA electronic surveillance or physical search. As amended, no cause of action
would lie against any provider of electronic communication service, landlord,
custodian, or other person (including any officer, employee, agent, or other specified
person thereof) that furnishes any such aid in accordance with a court order or a
request for emergency assistance under this title for electronic surveillance or
physical search, or in response to a certification by the Attorney General or his
designee seeking information, facilities, or technical assistance from such person that
does not constitute electronic surveillance as defined in Sec. 101(f) of FISA.
Use of information acquired by electronic surveillance under FISA.
Sec. 106 of FISA limits the use by federal, state, or local governments of information
regarding unconsenting U.S. persons acquired or derived from electronic surveillance
under FISA. It also includes notification requirements and provides an opportunity
for an aggrieved person against whom such information is proffered in an official
proceeding to move to suppress such information if it was unlawfully acquired or if
the surveillance was not made in conformity with an order of authorization or
approval.
Under Sec. 9(g) of S. 3931, Sec. 209(g) of S. 3929, Sec. 106(i) of FISA, 50
U.S.C. § 1806(i), which deals with destruction of unintentionally acquired
information, would be modified to provide that, where any communication is
unintentionally acquired by an electronic, mechanical, or other surveillance device,
in circumstances in which a person has a reasonable expectation of privacy and a
warrant would be required for law enforcement purposes, and if both the sender and
all intended recipients are located in the United States, such contents shall be
destroyed upon recognition, unless the Attorney General determines that the contents
indicate a threat of death or serious bodily harm to any person. Current subsection
106(i) includes parallel provisions, but applies only to unintentionally acquired radio
communications. (Emphasis added.)
The import of a second amendment to subsection 106(i) of FISA, 50 U.S.C. §
1806(i), in Sec. 209(g)(1)(B) of S. 3886, Sec. 9(g)(1)(B) of S. 2453, is somewhat
unclear. The provision indicates that subsection 106(i) of FISA would be amended
by “inserting ‘contain significant foreign intelligence information or’ after ‘Attorney
General determines that the contents’ inserting ‘contain significant foreign
intelligence information or.’” [sic] As written, this language is unclear. If one were
to insert “contain significant foreign intelligence information or contain significant
foreign intelligence information or” after “Attorney General determines that the
contents,” the result would be an amended provision reading:
In circumstances involving the unintentional acquisition by an electronic,
mechanical, or other surveillance device of the contents of any communication,
under circumstances in which a person has a reasonable expectation of privacy
and a warrant would be required for law enforcement purposes, and if both the
sender and all intended recipients are located within the United States, such
contents shall be destroyed upon recognition, unless the Attorney General
determines that the contents contain significant foreign intelligence information
or indicate a threat of death or serious bodily harm to any person.



This would expand the circumstances in which destruction of the unintentionally
acquired contents of the communication would be forestalled. However, the
inclusion twice in the amending language of the phrase “inserting ‘contain foreign
intelligence information or’” suggests that one of these inclusions may be
redundant. 27
Sec. 9(g)(2) of S. 3930, Sec. 209(g)(2) of S. 3929, makes a conforming
amendment to subsection 106(k), replacing “104(a)(7)” with “104(a)(6),” reflecting
a change made to Sec. 104 of FISA, 50 U.S.C. § 1804, by Sec. 9(e) of S. 3930, Sec.

209(e) of S. 3929.


Congressional oversight under Sec. 108 of FISA regarding a
document management system for applications for FISC orders
authorizing electronic surveillance. Sec. 9(h) of S. 3931, Sec. 209(h) of S.

3929, amends the congressional oversight provisions of Sec. 108 of FISA, 50 U.S.C.


§ 1808, to add a new subsection 108(c) requiring the Attorney General and the
Director of National Intelligence, in consultation with the Director of the FBI, the
Director of the NSA, the Director of the CIA, and the FISC, to conduct a feasibility
study to develop and implement a secure, classified document management system
that would permit prompt preparation, modification, and review by appropriate
personnel of the Department of Justice, the FBI, the NSA, and other applicable U.S.
government elements, of applications for FISC orders authorizing electronic
surveillance before their submittal to the FISC. Such a system would permit and
facilitate prompt submittal of applications and all other matters, including electronic28
filings to the FISC under Sections 104 or 105(g)(5) of FISA, and would permit and
facilitate the prompt transmittal of FISC rulings to personnel submitting such
applications.
Amendments to FISA, Title I, Relating to Weapons of Mass
Destruction. Sec. 9(i) of S. 3931, Sec. 209(i) of S. 3929, made a series of
amendments to Title I of FISA, which deals with electronic surveillance.
Agent of a Foreign Power definition. Section 101(b)(1) of FISA, 50
U.S.C. § 1801(b)(1), lists a number of categories of persons, other than U.S. persons,
who are defined as “agents of a foreign power” under FISA. Sec. 9(i)(1) of S. 3931,
Sec. 209(i)(1) of S. 3929, would add a new subsection 101(b)(1)(E) to the definition
of “agent of a foreign power” under subsection 101(b)(1), and redesignate current


27 It would seem that the same impact upon subsection 106(i) might be achieved by the
deletion of either of the two iterations of the phrase. Thus, the amendment might be
phrased: Section 106 is amended in subsection (i) by “inserting ‘contain significant foreign
intelligence information or’ after ‘Attorney General determines that the contents.’”
Alternatively, the amendment might state: Section 106 is amended, “after ‘Attorney General
determines that the contents’ by inserting ‘contain significant foreign intelligence
information or.’”
28 There is no current Sec. 105(g)(5) of FISA. Sec. 105(g) of FISA, 50 U.S.C. § 1805(g)
deals with “testing of electronic equipment; discovering unauthorized electronic
surveillance; training of intelligence personnel.”

subsection 101(b)(1)(E) of FISA as subsection 101(b)(1)(F). Under the new
definitional category, any person other than a U.S. person who “engages in the
development or proliferation of weapons of mass destruction, or activities in
preparation therefor” would be deemed an “agent of a foreign power” under FISA.
Section 101(b)(2) of FISA, 50 U.S.C. § 1801(b)(2) lists a series of categories
of persons (whether or not they are U.S. persons) who are also defined as “agents of
a foreign power.” Under current subsection 101(b)(2)(C), any person who
“knowingly engages in sabotage or international terrorism, or activities that are in
preparation therefor, for or on behalf of a foreign power” is deemed to be an “agent
of a foreign power.” As amended by Sec. 9(i)(1)(B) of S. 3931, Sec. 209(i)(1)(B) of
S. 3929, under subsection 101(b)(2)(C) of FISA, 50 U.S.C. § 1801(b)(2)(C), any
person who “knowingly engages in sabotage, international terrorism, or the
development or proliferation of weapons of mass destruction or activities that are in
preparation therefor, for or on behalf of a foreign power” would be considered an
“agent of a foreign power” under FISA.
New definition of Weapon of Mass Destruction. Sec. 9(i)(1)(C) of S.
3931, Sec. 209(i)(1)(C) of S. 3929, would add a new subsection 101(l) to the
definitions in Section 101 of FISA, 50 U.S.C. § 1801. Under this new subsection,
“weapon of mass destruction” would mean:
(1) any destructive device (as that term is defined in section 921 of title 18,
United States Code) that is intended or has the capability, to cause death or
serious bodily injury to a significant number of people;
(2) any weapon that is designed or intended to cause death or serious bodily
injury through the release, dissemination, or impact of toxic or poisonous
chemicals, or their precursors;
(3) any weapon involving a biological agent, toxin, or vector (as those terms are
defined in section 178 of title 18, United States Code); or
(4) any weapon that is designed to release radiation or radioactivity at a level
dangerous to human life.



Sections 101(e)(1)(B),29 106(k)(1)(B),30 and 305(k)(1)(B)31 of FISA, 50 U.S.C. §§
1801(e)(1)(B), 1806(k)(1)(B), and 1825(k)(1)(B), each would be amended to
encompass not only sabotage or international terrorism, but also the development or
proliferation of weapons of mass destruction.
Conforming Amendments to Titles I and III of FISA to Accommodate
International Movements of Targets. Sec. 9(j) of S. 3931, Sec. 209(j) of S.
3929, amends both Sections 105(e) and 304(d) of FISA, 50 U.S.C. §§ 1805(e) and
1824(d), dealing with the duration and extension of FISC orders authorizing
electronic surveillance and physical searches, respectively under FISA, to address
international movements of targets. A new subsection 105(e)(4) would be added to
FISA, providing, “An order issued under this section shall remain in force during the


29 As amended, Section 101(e)(1)(B) of FISA, 50 U.S.C. § 1801(e)(1)(B), would define
“foreign intelligence information,” to include, among other things, “sabotage, international
terrorism, or the development or proliferation of weapons of mass destruction by a foreign
power or an agent of a foreign power.”
30 As amended, Section 106(k)(1)(B) of FISA, which deals with consultation with federal
law enforcement officers or state or local law enforcement personnel by those who engage
in electronic surveillance to acquire foreign intelligence information under FISA, would
permit:
(1) Federal officers who conduct electronic surveillance to acquire foreign
intelligence information under this title may consult with Federal law
enforcement officers or law enforcement personnel of a State or political
subdivision of a State (including the chief executive officer of that State or
political subdivision who has the authority to appoint or direct the chief law
enforcement officer of that State or political subdivision) to coordinate efforts
to investigate or protect against
. . .
(B) sabotage, international terrorism, or the development or proliferation of
weapons of mass destruction by a foreign power or an agent of a foreign power;
. . .
. . . .
31 As amended, Section 305(k)(1)(B) of FISA, which deals with consultation with federal
law enforcement officers or state, or local law enforcement personnel by those who engage
in physical searches to acquire foreign intelligence information under FISA, would permit:
(1) Federal officers who conduct physical searches to acquire foreign intelligence
information under this subchapter may consult with Federal law enforcement
officers or law enforcement personnel of a State or political subdivision of a
State (including the chief executive officer of that State or political subdivision
who has the authority to appoint or direct the chief law enforcement officer of
that State or political subdivision) to coordinate efforts to investigate or protect
against
. . .
(B) sabotage, international terrorism, or the development or proliferation of
weapons of mass destruction by a foreign power or an agent of a foreign power;
. . .
. . . .

authorized period of surveillance notwithstanding the absence of the target from the
United States, unless the Government files a motion to extinguish the order and the
court grants the motion.” Similarly, a new subsection 304(d)(4) would be added to
FISA, stating, “An order issued under this section shall remain in force during the
authorized period of physical search notwithstanding the absence of the target from
the United States, unless the Government files a motion to extinguish the order and
the court grants the motion.”
Conforming Amendment to Table of Contents of FISA
Sec. 10 of S. 3931, Sec. 210 of S. 3929, would make conforming amendments
to the table of contents of FISA, to reflect the replacement of the current Section 102
of FISA with a new Section 102; the repeal of the wartime authorities under FISA,
Sections 111, 309, and 404; and the creation of a new Title VII of FISA and
redesignation of the current Title VII as Title VIII of FISA.