HR 3356 IHCommentsClose CommentsPermalink

To amend the Foreign Intelligence Surveillance Act of 1978 to establish a procedure for authorizing certain electronic surveillance.CommentsClose CommentsPermalink

August 3, 2007

Mr. REYES (for himself, Mr. CONYERS, Mr. SCHIFF, and Mr. FLAKE) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Select Committee on Intelligence (Permanent Select), 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; which was considered and failed of passageCommentsClose CommentsPermalink

To amend the Foreign Intelligence Surveillance Act of 1978 to establish a procedure for authorizing certain electronic surveillance.CommentsClose CommentsPermalink

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,CommentsClose CommentsPermalink

SECTION 1. SHORT TITLE.

This Act may be cited as the `Improving Foreign Intelligence Surveillance to Defend the Nation and the Constitution Act of 2007'.CommentsClose CommentsPermalink

SEC. 2. PURPOSE.

The purpose of this Act is to facilitate the acquisition of foreign intelligence information by providing for the electronic surveillance of persons reasonably believed to be outside the United States pursuant to methodologies proposed by the Attorney General, reviewed by the Foreign Intelligence Surveillance Court, and applied by the Attorney General without further court approval, unless otherwise required under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).CommentsClose CommentsPermalink

SEC. 3. ADDITIONAL PROCEDURE FOR AUTHORIZING CERTAIN ELECTRONIC SURVEILLANCE.

(a) In General- The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended by inserting after section 105 the following:CommentsClose CommentsPermalink

`CLARIFICATION OF ELECTRONIC SURVEILLANCE OF PERSONS OUTSIDE THE UNITED STATES

`Sec. 105A. Notwithstanding any other provision of this Act, a court order is not required for the acquisition of the contents of any communication between persons that are not located within the United States for the purpose of collecting foreign intelligence information, without respect to whether the communication passes through the United States or the surveillance device is located within the United States.CommentsClose CommentsPermalink

`ADDITIONAL PROCEDURE FOR AUTHORIZING CERTAIN ELECTRONIC SURVEILLANCE

`Sec. 105B. (a) In General- Notwithstanding any other provision of this title, the Attorney General, upon the authorization of the President, may apply to a judge of the court established under section 103(a) for an ex parte order, or an extension of an order, authorizing electronic surveillance for periods of not more than 1 year, for the purpose of acquiring foreign intelligence information, in accordance with this section.CommentsClose CommentsPermalink





`(b) Application-CommentsClose CommentsPermalink





`(1) SPECIFIC PERSONS AND PLACES NOT REQUIRED- An application for an order, or extension of an order, submitted under subsection (a) shall not be required to identify--CommentsClose CommentsPermalink





`(A) the persons, other than a foreign power, against whom electronic surveillance will be directed; orCommentsClose CommentsPermalink





`(B) the specific facilities, places, premises, or property at which the electronic surveillance will be directed.CommentsClose CommentsPermalink





`(2) CONTENTS- An application for an order, or extension of an order, submitted under subsection (a) shall include--CommentsClose CommentsPermalink





`(A) a statement that the electronic surveillance is directed at persons reasonably believed to be outside the United States;CommentsClose CommentsPermalink





`(B) the identity of the Federal officer seeking to conduct such electronic surveillance;CommentsClose CommentsPermalink





`(C) a description of--CommentsClose CommentsPermalink





`(i) the methods to be used by the Attorney General to determine, during the duration of the order, that there is a reasonable belief that the targets of the electronic surveillance are persons outside the United States; andCommentsClose CommentsPermalink





`(ii) the procedures to audit the implementation of the methods described in clause (i) to achieve the objective described in that clause;CommentsClose CommentsPermalink





`(D) a description of the nature of the information sought, including the identity of any foreign power against whom electronic surveillance will be directed; andCommentsClose CommentsPermalink





`(E) a statement of the means by which the electronic surveillance will be effected and such other information about the surveillance techniques to be used as may be necessary to assess the proposed minimization procedures.CommentsClose CommentsPermalink





`(c) Application Approval; Order-CommentsClose CommentsPermalink





`(1) APPLICATION APPROVAL- A judge considering an application for an order, or extension of an order, submitted under subsection (a) shall approve such application if the Attorney General certifies in writing under oath, and the judge upon consideration of the application determines, that--CommentsClose CommentsPermalink





`(A) the acquisition does not constitute electronic surveillance within the meaning of paragraph (1) or (3) of section 101(f);CommentsClose CommentsPermalink





`(B) the methods described by the Attorney General under subsection (b)(2)(B)(i) are reasonably designed to determine whether the persons are outside the United States;CommentsClose CommentsPermalink





`(C) a significant purpose of the electronic surveillance is to obtain foreign intelligence information; andCommentsClose CommentsPermalink





`(D) the proposed minimization procedures meet the definition of minimization procedures under section 101(h).CommentsClose CommentsPermalink





`(2) ORDER- A judge approving an application pursuant to paragraph (1) shall issue an order that--CommentsClose CommentsPermalink





`(A) authorizes electronic surveillance as requested, or as modified by the judge;CommentsClose CommentsPermalink





`(B) requires a communications service provider, custodian, or other person who has the lawful authority to access the information, facilities, or technical assistance necessary to accomplish the electronic surveillance, upon the request of the applicant, to furnish the applicant forthwith with such information, facilities, or technical assistance in a manner that will protect the secrecy of the electronic surveillance and produce a minimum of interference with the services that provider, custodian, or other person is providing the target of electronic surveillance;CommentsClose CommentsPermalink





`(C) requires such communications service provider, custodian, or other person, upon the request of the applicant, to maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the acquisition or the aid furnished;CommentsClose CommentsPermalink





`(D) directs the Federal Government to compensate, at the prevailing rate, a person for providing information, facilities, or assistance pursuant to such order; andCommentsClose CommentsPermalink





`(E) directs the applicant to follow the minimization procedures as proposed or as modified by the court.CommentsClose CommentsPermalink





`(3) ASSESSMENT OF COMPLIANCE WITH MINIMIZATION PROCEDURES- At or before the end of the period of time for which electronic surveillance is approved by an order or an extension under this section, the judge may assess compliance with the minimization procedures by reviewing the circumstances under which information concerning United States persons was acquired, retained, or disseminated.CommentsClose CommentsPermalink





`(d) Guidelines for Surveillance of United States Persons- Not later than 15 days after the date of the enactment of this section, the Attorney General shall establish guidelines that are reasonably designed to ensure that an application is filed under section 104, if otherwise required by this Act, when the Attorney General seeks to initiate electronic surveillance, or continue electronic surveillance that began under this section, of a United States person.CommentsClose CommentsPermalink





`(e) Submission of Orders, Guidelines, and Audits-CommentsClose CommentsPermalink





`(1) ORDERS- Upon the entry of an order under subsection (c)(2), the Attorney General shall submit to the appropriate committees of Congress such order.CommentsClose CommentsPermalink





`(2) GUIDELINES- Upon the establishment of the guidelines under subsection (d), the Attorney General shall submit to the appropriate committees of Congress and the court established under section 103(a) such guidelines.CommentsClose CommentsPermalink





`(3) AUDITS- Not later than 60 days after the date of the enactment of this section, and every 60 days thereafter until the expiration of all orders issued under this section, the Inspector General of the Department of Justice shall complete an audit on the compliance with the guidelines established under subsection (d) and shall submit to the appropriate committees of Congress, the Attorney General, the Director of National Intelligence, and the court established under section 103(a)--CommentsClose CommentsPermalink





`(A) the results of such audit;CommentsClose CommentsPermalink





`(B) a list of any targets of electronic surveillance under this section determined to be in the United States; andCommentsClose CommentsPermalink





`(C) the number of persons in the United States whose communications have been intercepted under this section.CommentsClose CommentsPermalink





`(f) Immediate Emergency Authorization-CommentsClose CommentsPermalink





`(1) IN GENERAL- Notwithstanding any other provision of this title, during the first 15 days following the date of the enactment of this section, upon the authorization of the President, the Attorney General may authorize electronic surveillance without a court order under this title until the date that is 15 days after the date on which the Attorney General authorizes such electronic surveillance if the Attorney General determines--CommentsClose CommentsPermalink





`(A) that an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; andCommentsClose CommentsPermalink





`(B) the electronic surveillance will be directed at persons reasonably believed to be outside the United States.CommentsClose CommentsPermalink





`(2) PENDING ORDER-CommentsClose CommentsPermalink





`(A) INITIAL EXTENSION- If at the end of the period in which the Attorney General authorizes electronic surveillance under paragraph (1), the Attorney General has submitted an application for an order under subsection (a) but the court referred to in section 103(a) has not approved or disapproved such application, such court may authorize the Attorney General to extend the emergency authorization of electronic surveillance under paragraph (1) for not more than 15 days.CommentsClose CommentsPermalink





`(B) SUBSEQUENT EXTENSION- If at the end of the extension of the emergency authorization of electronic surveillance under subparagraph (A) the court referred to in section 103(a) has not approved or disapproved the application referred to in subparagraph (A), such court may authorize the Attorney General to extend the emergency authorization of electronic surveillance under paragraph (1) for not more than 15 days.CommentsClose CommentsPermalink





`(3) MAXIMUM LENGTH OF AUTHORIZATION- Notwithstanding paragraphs (1) and (2), in no case shall electronic surveillance be authorized under this subsection for a total of more than 45 days without a court order under this title.CommentsClose CommentsPermalink





`(4) MINIMIZATION PROCEDURES- The Attorney General shall ensure that any electronic surveillance conducted pursuant to paragraph (1) or (2) is in accordance with minimization procedures that meet the definition of minimization procedures in section 101(h).CommentsClose CommentsPermalink





`(5) INFORMATION, FACILITIES, AND TECHNICAL ASSISTANCE- Pursuant to an authorization of electronic surveillance under this subsection, the Attorney General may direct a communications service provider, custodian, or other person who has the lawful authority to access the information, facilities, or technical assistance necessary to accomplish such electronic surveillance to--CommentsClose CommentsPermalink





`(A) furnish the Attorney General forthwith with such information, facilities, or technical assistance in a manner that will protect the secrecy of the electronic surveillance and produce a minimum of interference with the services that provider, custodian, or other person is providing the target of electronic surveillance; andCommentsClose CommentsPermalink





`(B) maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the acquisition or the aid furnished.CommentsClose CommentsPermalink





`(g) Prohibition on Liability for Providing Assistance- Section 105(i), relating to protection from liability for the furnishing of information, facilities, or technical assistance pursuant to a court order under this Act, shall apply to this section.CommentsClose CommentsPermalink





`(h) Effect of Section on Other Authorities- The authority under this section is in addition to the authority to conduct electronic surveillance under sections 104 and 105.CommentsClose CommentsPermalink





`(i) Appropriate Committees of Congress Defined- In this section, the term `appropriate committees of Congress' means--CommentsClose CommentsPermalink





`(1) the Select Committee on Intelligence and the Committee on the Judiciary of the Senate; andCommentsClose CommentsPermalink





`(2) the Permanent Select Committee on Intelligence and the Committee on the Judiciary of the House of Representatives.'.CommentsClose CommentsPermalink





(b) Technical and Conforming Amendment- The table of contents in the first section of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended by inserting after the item relating to section 105 the following:CommentsClose CommentsPermalink





`Sec. 105A. Clarification of electronic surveillance of persons outside the United States.CommentsClose CommentsPermalink





`Sec. 105B. Additional procedure for authorizing certain electronic surveillance.'.CommentsClose CommentsPermalink





(c) Sunset-CommentsClose CommentsPermalink





(1) IN GENERAL- Except as provided in paragraph (2), effective on the date that is 120 days after the date of the enactment of this Act, sections 105A and 105B of the Foreign Intelligence Surveillance Act of 1978, as added by subsection (a), are hereby repealed.CommentsClose CommentsPermalink





(2) EXCEPTION- Any order under section 105B of the Foreign Intelligence Surveillance Act of 1978, as added by this Act, in effect on such date that is 120 days after the date of the enactment of this Act, shall continue in effect until the date of the expiration of such order.CommentsClose CommentsPermalink