The Foreign Intelligence Surveillance Act: Comparison of House-Passed H.R. 3773, S. 2248 as Reported By the Senate Select Committee on Intelligence, and S. 2248 as Reported Out of the Senate Judiciary Committee

The Foreign Intelligence Surveillance Act:
Comparison of House-Passed H.R. 3773, S. 2248
as Reported by the Senate Select Committee on
Intelligence, and S. 2248 as Reported Out of
the Senate Judiciary Committee
Updated February 8, 2008
Elizabeth B. Bazan
Legislative Attorney
American Law Division



The Foreign Intelligence Surveillance Act:
Comparison of House-Passed H.R. 3773, S. 2248
as Reported by the Senate Select Committee on
Intelligence, and S. 2248 as Reported Out of
the Senate Judiciary Committee
Summary
On November 15, 2007, the House of Representatives passed H.R. 3773, the
RESTORE Act of 2007. On October 26, 2007, Senator Rockefeller reported S. 2248,
the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2007 or the
FISA Amendment Act of 2007, an original bill, from the Senate Select Committee
on Intelligence. On November 16, 2007, S. 2248 was reported out of the Senate
Judiciary Committee by Senator Leahy with an amendment in the nature of a
substitute. On December 17, 2007, the Senate considered a motion to proceed with
consideration of S. 2248. Cloture on the motion to proceed was invoked by a vote
of 76-10, Record Vote Number 435. After some debate in the closing hours before
the Senate broke for the holidays, a decision was made to revisit the measure when
the Members returned in January. Senate floor activities on S. 2248 resumed on
January 23 and 24, 2008. A modified version of the Senate Judiciary Committee’s
amendment in the nature of a substitute to S. 2248 was tabled. Senator Reid sought
unanimous consent for consideration of the House-passed bill, H.R. 3773, but
Senator McConnell objected. Senator Rockefeller, for himself and Senator Bond,
proposed an amendment in the nature of a substitute to S. 2248 (S.Amdt. 3911). A
cloture motion by Senator McConnell on this amendment did not pass.
On January 29, 2008, both the House and the Senate passed H.R. 5104, a 15-day
extension to the sunset for the Protect America Act, to allow further time to consider,
pass, and go to conference on proposed legislation to amend FISA, while ensuring
that the intelligence community would have the authority it needed in the intervening
period. Pursuant to an agreement and order of January 31, 2008, S.Amdts. 3909, as
modified, 3932, as modified, 3960, as modified, and S. 3945 were agreed to, while
other amendments were scheduled for floor debate. In the ensuing floor consideration
to date, S.Amdt. 3941 was agreed to, while S.Amdts. 3913 and 3915 failed to pass
on February 7, 2008. S.Amdt. 3930 fell short of the requisite 60 votes and was
withdrawn on February 6, 2008. Still pending are S.Amdts. 3938, as modified, 3911,
3907, 3927, 3919, 3920, and 3910. Floor debate is anticipated to continue early next
week, with additional votes expected on Tuesday, February 12, 2008.
H.R. 3773, S. 2248, and the Senate Judiciary Committee’s amendment in the
nature of a substitute to S. 2248 each includes amendments to the Foreign
Intelligence Surveillance Act. This report provides a side by side comparison of the
provisions of these three measures. A glossary of FISA terms from section 101 of
FISA, 50 U.S.C. § 1801 is attached. Other FISA bills have also been introduced,
such as S. 2440, S. 2441, and S. 2402. These bills are not included in this side-by-
side comparison.



Contents
In troduction ......................................................1
Limitation on Definition of Electronic Surveillance...................3
Definitions ...................................................3
Warrantless Electronic Surveillance or Targeting of Certain Persons
Reasonably Believed to be Outside the United States..............4
Acquisition Inside the United States of Communications of
United States Persons Reasonably Believed
to be Outside the United States...............................5
Requirements for AG/DNI certification........................8
Exception to certification requirement where
immediate government action required....................12
Adoption of Targeting Procedures and Minimization Procedures
and Judicial Review of Procedures and Certifications............13
Continuation of acquisition pending rehearing or appeal..........16
Temporary Order; appeals..................................17
Requirements for or Directives to Electronic Communications
Service Providers.........................................18
Compensation ...........................................19
Challenging of directives...................................20
Prospective Limitation on Liability for those Furnishing Aid to
the Government under Directive or Section 105B Order..........22
Amendments to Section 104 of FISA.............................25
Emergency Authorizations......................................26
Amendments to Section 105 of FISA Other Than Those
Dealing with Emergency Authorizations.......................33
Amendments to Section 106 of FISA.............................34
Amendments to Physical Search Provisions of FISA.................35
Emergency Installation and Use of Pen Registers and
Trap and Trace Devices....................................36
Oversight ...................................................37
FISC En Banc Authority and Other FISC Matters....................42
Exclusivity ..................................................44
Enhancement of Wartime Authority..............................46
Audit of Warrantless Surveillance Programs Conducted on or after
September 11, 2001, including Terrorist
Surveillance Program......................................46
Record-Keeping System on Acquisition of Communications of
U.S. Persons.............................................48
Authorization for Increased Resources Relating to
Foreign Intelligence Surveillance............................48
Provision of Information on Terrorist Surveillance Program
and Similar Programs to Each Member of
HPSCI and SSCI.........................................51
Technical and Conforming Amendments..........................52
Sunset Provisions and Transition Provisions........................53



Furnishing Aid to the Government Regarding Lawfulness of
Electronic Surveillance under Section 102 of FISA..............55
Statute of Limitations Applicable to Violations of Section 109
of FISA.................................................55
Retroactive Immunity for Electronic Communications Service Providers
Furnishing Aid to the Government...........................56
Procedures for Implementing Statutory Defenses for Persons
Providing Assistance to an Element of
the Intelligence Community.................................59
Preemption of State Investigations...............................61
Glossary of FISA Terms from 50 U.S.C. § 1801.........................63
List of Tables
Table 1. Comparison of H.R. 3773 as Passed by the House, S. 2248 as
Reported by the Senate Select Committee on Intelligence, and
S. 2248 as Reported Out of the Senate Judiciary Committee
with an Amendment in the Nature of a Substitute.....................3



The Foreign Intelligence Surveillance Act:
Comparison of House-Passed H.R. 3773,
S. 2248 as Reported by the Senate
Select Committee on Intelligence,
and S. 2248 as Reported Out of
the Senate Judiciary Committee
Introduction
During the 110th Congress, several House and Senate committees have engaged
in oversight activities, including hearings and requests for expeditious production of
documents and information regarding the Administration’s warrantless foreign
intelligence surveillance programs, as possible changes to the Foreign Intelligence
Surveillance Act of 1978, as amended, were explored. In July 2007, an unclassified
summary of the National Intelligence Estimate on “The Terrorist Threat to the U.S.
Homeland” was released. It expressed the judgment, in part, that the U/S. Homeland
will face a persistent and evolving threat over the next three years, the main threat
coming from Islamic terrorist groups and cells, particularly Al Qaeda. On August 2,
2007, the Director of National Intelligence (DNI) released a statement on
“Modernization of the Foreign Intelligence Surveillance Act.” In his statement,
Admiral McConnell viewed such modernization as necessary to respond to
technological changes and to meet the Nation’s current intelligence collection needs.
He deemed it essential for the Intelligence Community to provide warning of threats
to the United States. He perceived two critically needed changes. First, he stated that
a court order should not be required for gathering foreign intelligence from foreign
targets located overseas, although he did agree to court review of related procedures
after commencement of the needed collection. Second, he contended that liability
protection was needed for those who furnished aid to the government in carrying out
its foreign intelligence collection efforts.
On August 5, 2007, the Protect America Act of 2007, P.L. 110-55, was enacted
into law with a 180 day sunset provision, providing a temporary solution to concerns
raised by the Director of National Intelligence. Both the House and the Senate have
considered or are considering possible legislation to provide a longer-term statutory
approach to these concerns. On November 15, 2007, the House of Representatives
passed H.R. 3773, the Responsible Electronic Surveillance That is Overseen,
Reviewed, and Effective Act of 2007 or the RESTORE Act of 2007. On October 26,
2007, Senator Rockefeller reported S. 2248, the Foreign Intelligence Surveillance Act
of 1978 Amendments Act of 2007 or the FISA Amendment Act of 2007, an original
bill, from the Senate Select Committee on Intelligence. S. 2248 was referred to the
Senate Judiciary Committee on November 1, 2007. On November 16, 2007, S. 2248



was reported out of the Senate Judiciary Committee by Senator Leahy with an
amendment in the nature of a substitute. On December 14, 2007, Senator Reid made
a motion to proceed with consideration of S. 2248, and presented a cloture motion
on the motion to proceed. The motion to proceed was then withdrawn. On
December 17, 2007, the Senate considered the motion to proceed with the measure.
Cloture on the motion to proceed was invoked by a vote of 76-10, Record Vote
Number 435. After some debate in the closing hours before the Senate broke for the
holidays, a decision was made to revisit the measure when the Members returned in
January.
Senate floor activities on S. 2248 resumed on January 23 and 24, 2008. A
modified version of the Senate Judiciary Committee’s amendment in the nature of
a substitute to S. 2248 was tabled. Senator Reid sought unanimous consent for
consideration of the House-passed bill, H.R. 3773, but Senator McConnell objected.
Senator Rockefeller, for himself and Senator Bond, proposed an amendment in the
nature of a substitute to S. 2248 (S.Amdt. 3911). On January 28, 2008, a cloture
motion by Senator McConnell on this amendment failed to pass. A cloture motion
on an amendment proposed by Senator Reid to S. 2248 to extend the sunset on the
Protect America Act for an additional 30 days (S.Amdt. 3918) also fell short of the
required votes. Other amendments to S. 2248 have been proposed. On January 29,
2008, both the House and the Senate passed H.R. 5104, a 15-day extension to the
sunset for the Protect America Act, to allow further time to consider, pass, and go to
conference on proposed legislation to amend FISA, while ensuring that the
intelligence community would have the authority it needed in the intervening period.
Pursuant to an agreement and order of January 31, 2008, S.Amdts. 3909, as modified;
3932, as modified; 3960, as modified; and S. 3945 were agreed to, while other
amendments were scheduled for floor debate. In the ensuing floor consideration to
date, S.Amdt. 3941 was agreed to, while S.Amdts. 3913 and 3915 failed to pass on
February 7, 2008. S.Amdt. 3930 fell short of the requisite 60 votes and was
withdrawn on February 6, 2008. Still pending are S.Amdts. 3938, as modified, 3911,
3907, 3927, 3919, 3920, and 3910. Floor debate is anticipated to continue early next
week, with additional votes expected on Tuesday, February 12, 2008.
H.R. 3773, S. 2248 and the Senate amendment in the nature of a substitute to
S. 2248, each includes amendments to the Foreign Intelligence Surveillance Act. This
report provides a side by side comparison of the provisions of these three measures,
using H.R. 3773 as the basis for the comparison. As title I of FISA defines a number
of key terms critical to understanding the import of the bills’ language, a glossary of
FISA terms as defined in section 101 of FISA, 50 U.S.C. § 1801 is attached to assist
in understanding the effect of these measures. Senator Reid introduced two
additional FISA bills on December 10, 2007, S. 2440 and S. 2441, which were read
twice the following day and placed on the Senate Legislative Calendar as Numbers
529 and 530, respectively. S. 2402 was introduced by Senator Specter on December
3, 2007, and referred to the Senate Judiciary Committee. In Committee markup on
December 13, 2007, an amendment in the nature of a substitute to S. 2402 was
adopted by unanimous consent. Then, by a vote of 5-13, the Committee rejected S.
2402, as amended. The proposal would have permitted substitution of the
government for electronic communication service providers in law suits where
certain criteria were met. These bills will not be included in this side-by-side
comparison.



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Table 1. Comparison of H.R. 3773 as Passed by the House,
S. 2248 as Reported by the Senate Select Committee on Intelligence,
and S. 2248 as Reported Out of the Senate Judiciary Committee
with an Amendment in the Nature of a Substitute
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
itle — “Responsible Electronic SurveillanceShort Title — “Foreign Intelligence Surveillance ActShort Title — “Foreign Intelligence Surveillance Act
at is Overseen, Reviewed, and Effective Act ofof 1978 Amendments Act of 2007” or the “FISAof 1978 Amendments Act of 2007” or the “FISA
iki/CRS-RL34277ORE Act of 2007”Amendments Act of 2007”Amendments Act of 2007”
g/wmitation on Definition of Electronic Surveillance
s.or
leakilar provision.Limitation on Definition of ElectronicNo similar provision.
://wikiSurveillance: Under section 701 of a new title VIIof FISA, nothing in the definition of “electronic
httpsurveillance” under section 101(f) of FISA, 50
U.S.C. § 1801(f), shall be construed to encompass
surveillance that is targeted in accordance with
proposed title VII of the Foreign Intelligence
Surveillance Act (FISA) at a person reasonably
believed to be located outside the United States
initions
ilar provision.New section 702 of FISA: Definitions. See alsoNew section 701 of FISA: Definitions.


section 802 of FISA on definitions.

CRS-4
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
tless Electronic Surveillance or Targeting of Certain Persons Reasonably Believed to be Outside the United States
c. 2 of the bill: Clarification of electronicNew section 703 of FISA: Permits Attorney GeneralNew section 702 of FISA: Permits AG and DNI to
rveillance of non-U.S. persons outside the(AG) and the Director of National Intelligence (DNI)jointly authorize, for up to 1 year, targeting of
ited States. Under amended section 105A ofto jointly authorize, for up to 1 year, targeting ofpersons reasonably believed to be outside United
SA, no court order is needed for electronicpersons reasonably believed to be outside UnitedStates to acquire foreign intelligence information.
rveillance directed at acquisition of contents ofStates to acquire foreign intelligence information.
munications between persons not known to beSuch an acquisition:
nably believed to be
nited States regardless of
iki/CRS-RL34277munication passed through United
g/wates or surveillance device is in United States.
s.or
leakilar provision. — may not intentionally target any person known atSame provision as S. 2248 (SSCI version).
://wikithe time of the acquisition to be located in the UnitedStates
http
ilar provision, but see section 105B as — may not intentionally target a person reasonably — may not intentionally target a person reasonably
ended, below.believed to be outside the United States if thebelieved to be outside the United States if a
purpose of the acquisition is to target forsignificant purpose of such acquisition is to acquire
surveillance a particular, known person reasonablythe communications of a specific person reasonably
believed to be in the United States, except inbelieved to be in the United States, except in
accordance with title I of FISA.accordance with title I of FISA.
ilar provision. — must be conducted in a manner consistent withSame provision as S. 2248 (SSCI version).


the fourth amendment to the U.S. Constitution.

CRS-5
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
ommunication involving a U.S. person or aNo similar provision.No similar provision.
rson in the United States is inadvertently
course of such electronic
eillance, its contents must be handled in
rdance with minimization procedures adopted
the AG. Under those procedures, no contents of
communication to which a U.S. person is a party
inated, or used for any
er than 7 days unless a
iki/CRS-RL34277105 of FISA is obtained orless the AG determines that the information
g/wh or serious bodily harm to
s.or person.
leak
://wikiquisition Inside the United States of Communications of United States Persons Reasonably Believed to be Outside the United States
httpilar provision.Acquisition under new subsection 703(a) of FISAAcquisition under new subsection 702(a) of FISA
inside the United States of U.S. persons outsideinside the United States of U.S. persons outside
the United States. If such an acquisition occursthe United States. If such an acquisition constitutes
inside the United States, it may not target a U.S.electronic surveillance and occurs inside the United
person reasonably believed to be outside the UnitedStates, it may not intentionally target a U.S. person
States, except in accordance with the provisions ofreasonably believed to be outside the United States,
title I of FISA. except in accordance with the procedures under title
I of FISA.



CRS-6
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
Communications of Certain Persons Reasonably Believed to be Outside the United States
ded section 105A(b) of FISA,No similar provision, but see new section 703 ofNo similar provision, but see new section 702 of
mmunications of Non-United States PersonsFISA procedures for acquiring the communicationsFISA procedures for acquiring the communications
the United States: A Foreignof certain persons outside the United States, whichof certain persons outside the United States, which
telligence Surveillance Court (FISC) order underpermit the AG and DNI to jointly authorize, for up topermit the AG and DNI to jointly authorize, for up to
SA or an emergency1 year, targeting of persons reasonably believed to be1 year, targeting of persons reasonably believed to be
ation under section 105 or 105C of FISA isoutside the United States to acquire foreignoutside the United States to acquire foreign
eillance targeting aintelligence information. intelligence information.
believed to be located outside the
iki/CRS-RL34277 person where the
g/weillance is directed at acquisition of that person’s
s.ormunications to collect most types of foreign
leakence information (as defined in sections
SA; see glossary).
://wiki
http the bill, section 105B of FISA, asNew section 703(c)(2) of FISA, restricts theNew section 702(c)(2) restricts the circumstances
ation ofcircumstances in which a surveillance devicein which a surveillance device outside the United
sitions of communications of non-U.S.outside the United States may be used toStates may be used to intentionally target U.S.
rsons located outside the United States whointentionally target U.S. persons reasonablypersons reasonably believed to be outside the
ay be communicating with persons inside thebelieved to be outside the United States to acquireUnited States to acquire certain wire and radio
ited States.certain wire and radio communications to andcommunications to and from them. New section
to FISC order, amended section 105B offrom them. New section 703(c)(2) of FISA702(c)(2) of FISA prohibits use of a surveillance
SA permits acquisitions for up to 1 year ofprohibits use of a surveillance device outside thedevice outside the United States to intentionally
munications of non-U.S. persons reasonablyUnited States to intentionally target U.S. personstarget U.S. persons reasonably believed to be outside
ed to be outside the United States to collectreasonably believed to be outside the United Statesthe United States to acquire the contents of wire and
ost types of foreign intelligence information (allto acquire the contents of wire and radioradio communications to and from those persons
ation with respect to a foreign power orcommunications to and from those persons underunder circumstances where there is a reasonable
reign territory that relates to, and if concerning acircumstances where there is a reasonableexpectation of privacy and a warrant would be



CRS-7
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
to the conduct of the foreignexpectation of privacy and a warrant would berequired for law enforcement purposes within the
nited States) by targeting thoserequired for law enforcement purposes within theUnited States, unless:
United States, unless the FISC finds probable cause — the FISC has entered an order approving
to believe the targets are foreign powers or agents ofelectronic surveillance of that U.S. person under
foreign powers and issues an ex parte order assection 105, or in the case of an emergency situation,
requested or as modified approving the targeting ofelectronic surveillance against the target is being
that person. The probable cause finding must beconducted in a manner consistent with title I; or
based upon the basis of facts submitted in an — the FISC has entered a order under new section
application by the AG or his designee. 703(c)(2)(B) of FISA that there is probable cause to
believe that the U.S. person is a foreign power or an
iki/CRS-RL34277agent of a foreign power;
g/w — the AG has established minimization procedures
s.orfor that acquisition that meet the definition of
leakminimization procedures under section 101(h); and
— the dissemination provisions of such
://wikiminimization procedures for the acquisition have
httpbeen approved under new section 702(c)(2)(C).
New section 702(c)(2)(B) permits the AG to submit
to the FISC his determination, together with any
supporting affidavits, that a U.S. person who is
outside the United States is a foreign power or an
agent of a foreign power. The FISC, in reviewing
such a determination, is limited to whether, on the
basis of the facts submitted by the AG, there is
probable cause to believe that the U.S. person who is
outside the United States is a foreign power or an
agent of a foreign power. If the FISC determines



CRS-8
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
such probable cause exists, it must issue an order
approving the acquisition. Such order shall be for 90
days, and can be renewed for additional 90 day
periods. If the FISC finds no probable cause, it shall
enter an order so stating and provide a written
statement for the record of its reasons. The
government may appeal such an order to the FISCR.
quirements for AG/DNI certification as part ofRequirements for AG/DNI certification asRequirements for AG/DNI certification as
application for a FISC order or extension of anprerequisite to an acquisition, new section 703(g)prerequisite to an acquisition, new section 702(g)
iki/CRS-RL34277 Such an application must include aof FISA: Before initiation of an acquisition, the AGof FISA: Similar, but not identical, provisions.
g/wcation by the DNI and the AG that satisfiesand the DNI shall provide, under oath, a written
s.orecific requirements. The DNI and the AG mustcertification attesting that:
leak:
://wikiets are persons reasonably believed to be — there are reasonable procedures in place for — similar provision to S. 2248 (SSCI version)
httptes who may bedetermining that the acquisition authorized is
municating with persons inside the Unitedtargeted at persons reasonably believed to be located
outside the United States and that such procedures
have been approved by, or will promptly be
submitted for approval by, the FISC;
ilar provision. — the procedures are consistent with the — similar provision to S. 2248 (SSCI version)


requirements of the fourth amendment to the U.S.
Constitution and do not permit the intentional
targeting of any person who is known at the time of
acquisition to be located in the United States;

CRS-9
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
targets are reasonably believed to be personsNo similar provision, but, under new sectionNo similar provision, but, under new section

703(c)(3), within 30 days after enactment of702(c)(3), within 30 days after enactment of the bill,


proposed title VII of FISA, the AG must submit tothe AG must submit to the FISC the procedures to be
the FISC the procedures to be used to determineused to determine whether a target reasonably
whether a target reasonably believed to be outsidedetermined to be outside the United States is a U.S.
the United States is a U.S. person. FISC approval ofperson. FISC approval of the procedures is a
the procedures is a prerequisite to their use to makeprerequisite to their use to make such a
such a determination.determination.
The government may appeal an FISC order to the
iki/CRS-RL34277FISCR where the FISC finds the procedures do not
g/wmeet the statutory requirements. Any targeting of
s.orpersons reasonably believed to be located outside the
leakUnited States shall use the procedures approved by
the FISC.
://wiki
http the acquisition involves obtaining the foreign — the acquisition involves obtaining the foreign — similar provision to S. 2248 (SSCI version)
ence information from, or with the assistanceintelligence information from or with the assistance
a communications service provider or custodian,of an electronic communication service provider;
ployee, or agent of such service
ider or custodian, who has authorized access to
munications to be acquired, either as they are
itted or while they are stored, or equipment
or may be used to transmit or store such
munications; and
ilar provision. — the acquisition does not constitute electronicNo similar provision.


surveillance, as limited by section 701;

CRS-10
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
nificant purpose of the acquisition is to — a significant purpose of the acquisition is toSimilar provision to S. 2248 (SSCI version).
n intelligence information (as defined inobtain foreign intelligence information; and
raph (1) or (2)(A) of section 101(e)).
ust also include criteria for
ining if such a significant purpose exists.No similar provision.No similar provision.
ust require consideration of whether
ent or agency conducting the
ht information on the specific
, or provided information that
specific U.S. person to, another federal
iki/CRS-RL34277ent or agency; and whether the federal
g/went or agency conducting the acquisition has
s.orined that the specific U.S. person has been the
leakect of ongoing interest or repeated investigation
a federal department or agency. Consideration
://wikiust also be given to whether the specific U.S.
http
ust also include a description
ill be used by the DNI andNo similar provision, but the AG/DNI certificationSimilar provision to S. 2248 (SSCI version).


during the duration of the order to determinemust attest that there are reasonable procedures in
ere is a reasonable belief that the targets areplace for determining that the acquisition authorized
U.S. persons located outside the United States;is targeted at persons reasonably believed to be
located outside the United States and that such
procedures have been approved by, or will promptly
be submitted for approval by, the FISC.

CRS-11
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
ature of the information sought, including No similar provision.No similar provision.
of any foreign power against whom the
ill be directed;
inimization procedures that meet the definition — the minimization procedures to be used withSimilar provision to S. 2248 (SSCI version).
inimization procedures under section 101(h) torespect to such acquisition meet the definition of
minimization procedures under section 101(h); and
have been approved by, or will promptly be
submitted for approval by, the FISC.
iki/CRS-RL34277uidelines to be used to ensure that anNo similar provision, but, under new section 703 ofNo provision similar to this provision of H.R. 3773,
g/wtion is filed under section 104 of FISA, ifFISA, an acquisition may not intentionally target abut new section 702 is similar to section 703 of S.
s.orquired by this act, when a significantperson reasonably believed to be outside the United2248 (SSCI version).
leak of an acquisition is to acquire theStates if the purpose of the acquisition is to target for
munications of a specific U.S. person reasonablysurveillance a particular, known person reasonably
://wikied to be located in the United States; andbelieved to be in the United States, except in
httpaccordance with title I of FISA.
ilar provision.The certification must be supported, as appropriate,Similar provision to S. 2248 (SSCI version).


by the affidavit of any appropriate official in the area
of national security who is appointed by the
President, by and with the consent of the Senate; or
the head of any element of the intelligence
community.
to identify theSuch a certification is not required to identify the
s, premises, or property atspecific facilities, places, premises, or property at
ich the acquisition of foreign intelligencewhich the acquisition will be directed or conducted.

CRS-12
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
ation will be directed.
ilar provision. Cf., requirements forException to certification requirement whereSimilar provision to S. 2248 (SSCI version).
ergency authorizations of acquisitions underimmediate government action required: If the AG
of FISA as amended by the bill.and the DNI determine that immediate federal
government action is required and time does not
permit the preparation of a certification before
initiation of an acquisition, the AG and the DNI shall
prepare a certification, including such determination,
as soon as possible but in no event more than 168
iki/CRS-RL34277hours after the determination is made.
g/w
s.orThe AG must transmit a copy of a certification any
leaksupporting affidavit under seal to the FISC as soon
as possible within 5 days after such certification is
://wikimade, there to be maintained under security
httpmeasures adopted by the Chief Justice of the United
States and the AG, in consultation with the DNI.
Conduct of acquisition: Such an acquisition mayConduct of acquisition: Such an acquisition may
be conducted only in accordance with the AG/DNIbe conducted only in accordance with the AG/DNI
certification; targeting procedures, adopted by thecertification and the required targeting and
AG in consultation with the DNI, and subject tominimization procedures.


judicial review by the FISC, that are reasonably
designed to ensure that any such acquisition is
limited to targeting persons reasonably believed to
be outside the United States; and minimization
procedures, adopted by the AG in consultation with

CRS-13
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
the DNI, which are consistent with the definition of
minimization procedures under section 101(h) of
FISA and are subject to judicial review by the FISC.
Targeting Procedures and Minimization Procedures and Judicial Review of Procedures and Certifications
ilar provision.Adoption of procedures and submittal to theSimilar provision to S. 2248 (SSCI version).
FISC of targeting procedures, minimization
procedures, and certifications; judicial review:
New section 703 of FISA requires submission to the
iki/CRS-RL34277FISC of certifications, targeting procedures, andminimization procedures for judicial review.
g/w
s.or — Within 30 days of enactment, the AG mustSimilar provision to S. 2248 (SSCI version).
leak
submit to the FISC procedures to be utilized in
://wikidetermining whether a target reasonably believed to
httpbe outside the United States is a U.S. person. These
procedures may only be used upon FISC approval.
Any targeting of persons authorized jointly by the
AG and DNI must utilize these procedures.
ilar provision.No similar provision.Transition procedures concerning targeting of
U.S. persons overseas, new section 702(c)(4) of
FISA: Any authorization in effect on the date of
enactment of S. 2248, the FISA Amendments Act of
2007, under section 2.5 of Executive Order 12333 to
intentionally target a U.S. person reasonably
believed to be located outside the United States, to
acquire the contents of a wire or radio



CRS-14
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
communication sent by or intended to be received by
that U.S. person, shall remain in effect, and shall
constitute a sufficient basis for conducting such an
acquisition of a U.S. person located outside the
United States, until that authorization expires or 90
days after the date of enactment of the FISA
Amendments Act of 2007, whichever is earlier.
ilar provision.Adoption and judicial review of targetingSimilar provision to S. 2248 (SSCI version).
procedures: The AG, in consultation with the DNI,
iki/CRS-RL34277must adopt targeting procedures reasonably designed
g/wto ensure that any acquisition under new subsection
s.or703(a) of FISA is limited to targeting persons
leakreasonably believed to be outside the United States
The procedures are to be submitted to the FISC by
://wikithe AG within 5 days of their adoption or
httpamendment. The FISC shall review these procedures
to assess whether they meet this standard.
ilar provision.Adoption and judicial review of minimizationSimilar provision to S. 2248 (SSCI version).


procedures: The AG, in consultation with the DNI,
must adopt minimization procedures for acquisitions
under the joint AG/DNI authority under new section
703(a). These procedures must be consistent with
the requirements for minimization procedures in
section 101(h) of FISA (see glossary), and shall be
reviewed by the FISC to assess whether the
minimization procedures for acquisitions meet the

CRS-15
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
section 101(h) standard. The AG is to submit the
minimization procedures and any amendment thereto
to the FISC within 5 days of adoption or amendment.
ilar provision.Judicial review of certifications: Certifications areSimilar provision to S. 2248 (SSCI version).


to be submitted by the AG to the FISC within 5 days
after making or amending the certification. The
FISC shall review the certification to determine
whether the certification contains all the required
elements.
iki/CRS-RL34277
g/wIf the FISC finds the certification contains all such
s.orrequired elements and the targeting and
leakminimization procedures meet the required standards
and are consistent with the fourth amendment to the
://wikiU.S. Constitution, the court must enter an order
httpapproving the continued use of the procedures for the
acquisition authorized under new section 703(a). If
the FISC finds any deficiencies, the court directing
the government, at the government’s election and to
the extent required by the FISC order, to either
correct any deficiency identified by the order within
30 days of issuance of the order, or to cease the
acquisition.

CRS-16
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
ilar provision.Appeals of any FISC order to FISCR andSimilar provision to S. 2248 (SSCI version).
petitions for certiorari to the U.S. Supreme
Court: The government may appeal any FISC order
to the Foreign Intelligence Surveillance Court of
Review (FISCR) and may file a petition for certiorari
to the U.S. Supreme Court to review an FISCR
decision. The FISC and the FISCR must provide a
written statement of the reasons for its decision.
Judicial proceedings shall be as expeditious as
possible.
iki/CRS-RL34277
g/wAll petitions are to be filed under seal. Upon the
s.orrequest of the government, any government
leaksubmission or portions thereof which may include
classified information shall be reviewed ex parte and
://wikiin camera. Records of such proceedings must be
httpmaintained under security measures adopted by the
Chief Justice of the United States in consultation
with the AG and the DNI. A directive or an order
granted under new section 703 of FISA must be
retained for at least 10 years.
New section 703(I) of FISA.
ilar provision, but see new section 105B(d)(2)Continuation of acquisition pending rehearing orSimilar, but not identical provisions to S. 2248
SA temporary order, appeals.appeal. Any acquisitions affected by a court order(SSCI version). Under new section 702(i)(6)(B) of
directing correction of deficiencies or cessation of anFISA, the Government may move for a stay of any
acquisition shall continue during the pendency of aorder of the Foreign Intelligence Surveillance Court
rehearing by the FISC en banc or any appeal to theunder new 702(i) (5)(B)(I) of FISA directing
FISCR. See section 109(b) of the bill creating FISCcorrection of deficiencies or cessation of an



CRS-17
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
en banc authority. Section 109 of the bill gives theacquisition pending review by the FISC en banc or
FISC authority, on its own initiative, or upon thepending appeal to the FISCR. Section 109 of the bill
request of the government or of a party undergives the FISC authority, on its own initiative, or
sections 501(f) or new 703(h)(4) or (5) of FISA, toupon the request of the government or of a party
hold a hearing or rehearing en banc when ordered byunder sections 501(f) or new 702(h)(4) or (5) of
a majority of the FISC judges upon a determinationFISA, to hold a hearing or rehearing en banc when
that en banc consideration is necessary to secure orordered by a majority of the FISC judges upon a
maintain uniformity of the court’s decisions, or thedetermination that en banc consideration is necessary
proceeding involves a question of exceptionalto secure or maintain uniformity of the court’s
importance.decisions, or the proceeding involves a question of
iki/CRS-RL34277exceptional importance.
g/w
s.or
leak. At the request of theNo similar provision, but see new sectionNo similar provision, but see new section
ent, an FISC judge who has denied an703(i)(6)(B) dealing with continuation of acquisition702(i)(6)(B) dealing with stay of FISC order during
://wiki105B of FISA,during pendency of appeals from correction ofpendency of appeal from correction of deficiency
httpay issue a temporary order authorizing thedeficiency order.order.


accordance with the denied
of FISA during
e pendency of the appeal from the denial. The
vernment may appeal the denial of a section 105B
porary order to the Foreign
telligence Surveillance Court of Review (FISCR),
ay seek U.S. Supreme Court review by filing

CRS-18
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
quirements for or Directives to Electronic Communications Service Providers
quirements for FISC order under section
(e) of FISA, as amended, approving
plication: An order issued by an FISC judge
ing an such an application authorizing the
of such communications
st comply with requirements for the
munications service provider; the federal
vernment; and for the applicant.
iki/CRS-RL34277
g/wquirements for the communications serviceDirectives to electronic communications serviceSimilar provision to S. 2248 (SSCI version), new
s.orprovider in connection with an acquisitionsection 702(h) of FISA.


leake order must require the communications serviceauthorized jointly by the AG and the DNI, new
ider or custodian, or officer, employee, or agentsection 703(h) of FISA: The AG and the DNI may
://wikiice provider or custodian, who hasdirect in writing an electronic communication
httped access to the information, facilities, orservice provider, as defined in new section 701 of
hnical assistance necessary to accomplish theFISA, to immediately provide the government with
to provide such information, facilities, orall information, facilities, or assistance necessary to
necessary to accomplish theaccomplish the acquisition in a manner that will
inimum of interference withprotect the secrecy of the acquisition and produce a
ices that provider, custodian, officer,minimum of interference with the services that such
ployee, or agent is providing the target of theelectronic communication service provider is
maintain any records concerningproviding to the target; and to maintain under
sition or the aid furnished under securitysecurity procedures approved by the Attorney
ed by the AG and the DNI. General and the Director of National Intelligence any
records concerning the acquisition or the aid
furnished that such electronic communication service
provider wishes to maintain.

CRS-19
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
quirements for the federal government: The
ust direct the federal government to:
pensate, at the prevailing rate, a person forCompensation — the federal government shallSimilar provision to S. 2248 (SSCI version), new
iding information, facilities, or assistancecompensate, at the prevailing rate, an electronicsection 702(h)(2) of FISA.


communication service provider for providing
information, facilities, or assistance.
provide that person with a copy of the portion of
e order directing the person to comply with the
iki/CRS-RL34277cf., Sec. 19(a) of the bill, imposing a similar
g/went under section 102(a) of FISA, 50 U.S.C.
s.or1802(a) and section 105(c)(2) of FISA, 50 U.S.C.
leakSec. 4 of the bill, amending section
of FISA imposing a similar requirement in
://wikiergency authorization context); and
http
ide a certification stating that the acquisition
ed under section 105B of FISA, as
ended, and that all requirements of this section
ve been met (cf., Sec.19(a) of the bill, imposing a
ilar requirement under section 102(a) of FISA, 50
S.C. § 1802(a), and Sec. 4 of the bill, amending
SA imposing a similar
ent in emergency authorization context).
quirements for the applicant for the order:
e order must direct the applicant for the order to

CRS-20
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
proposed or as modified by
judge, to be used by the AG and the DNI during
ine that there is a
ble belief that the targets of the acquisition
U.S. persons located outside the United
inimization procedures; and the
idelines to ensure that an application is filed under
this act, when
nificant purpose of an acquisition is to acquire
munications of a specific U.S. person
iki/CRS-RL34277 believed to be located in the United
g/w
s.or
leakilar provision.Challenging of directives: Permits an Similar to S. 2248 (SSCI version), new section
electronic communication service provider receiving702(h)(4) of FISA.
://wikisuch a directive to challenge it by filing a petition to
httpmodify it or set it aside with the FISC. Within 24
hours, the presiding judge of the FISC would assign
the petition to a judge of the FISC petition review
pool established under section 103(e)(1) of FISA, 50
U.S.C.§ 103(e)(1).
Standard of review: The judge considering theSimilar to S. 2248 (SSCI version), new section
petition to modify or set aside a directive may grant702(h)(4)(C).


it only if the judge finds that the directive does not
meet the requirements of new section 703(h)(4)(C)
of FISA or is otherwise unlawful. Otherwise, the
judge shall immediately affirm such directive, and
order the recipient to comply with it. The judge shall

CRS-21
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
provide a written statement for the record of the
reasons for his or her determination. Any directive
not explicitly modified or set aside under this
paragraph shall remain in full effect.
Enforcement of FISC order affirming, modifying,Similar provision to S. 2248 (SSCI version), new
or setting aside a directive: The FISC may punishsection 702(h)(5)(D) of FISA.
a failure to obey an FISC order issued under this
paragraph as contempt of court.
iki/CRS-RL34277Service of process: Any process under thisSimilar provision to S. 2248 (SSCI), new section
g/wparagraph may be served in any judicial district in702(c)(4)(E) of FISA.
s.orwhich the electronic communication service provider
leakmay be found. New section 703(c)(4)(E) of FISA.
://wikiAppeal to the FISCR of an FISC order affirming,Similar provision to S. 2248 (SSCI version.) New
httpmodifying, or setting aside a directive, orsection 702(c)(6).
punishing failure to obey such an order: An
appeal to the FISCR may be filed within 7 days of
the FISC order by the government or an electronic
communication service provider receiving such a
directive. The FISCR shall have jurisdiction to
consider such a petition and shall provide a written
statement for the record of the reasons for a decision
under this paragraph. New section 703(c)(6) of
FISA.
Certiorari to the U.S. Supreme Court: TheSimilar provision to S. 2248 (SSCI version), new



CRS-22
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
government or an electronic communication servicesection 702(c)(6)(B) of FISA.
provider receiving a such a directive may petition the
U.S. Supreme Court for review of an such an FISCR
decision The record for such review shall be
transmitted under seal to the Supreme Court, which
shall have jurisdiction to review such decision. New
section 703(c)(6)(i) of FISA.
orcement of section 105B order: The AG mayEnforcement of new section 703(h) directives: InSimilar provision to S. 2248 (SSCI version), new
iki/CRS-RL34277f the FISC to enforce compliancea case of failure to comply with such a directive, thesection 702(h)(5) of FISA.
g/with an order under section 105B, as amended.AG may petition the FISC for an order to compel
s.orilure to obey such a court order may becompliance. The presiding judge of the FISC shall
leakshed by contempt of court. In addition,assign the case to a judge of the petition review pool
ice of process may be made in any judicialof the FISC.
://wikiay be found.
http
ospective Limitation on Liability for those Furnishing Aid to the Government under Directive or Section 105B Order
mitation on liability for those furnishing aid toRelease from liability for electronicSimilar provision to S. 2248 (SSCI version), new
e government pursuant to an order undercommunication service providers who furnish aidsection 702(h)(3) of FISA.


ction 105B of FISA, as amended. No cause ofto the government pursuant to such a directive:
court against any person forNotwithstanding any other law, no cause of action
iding any information, facilities, or assistance inshall lie in any court against any electronic
ith an order issued under such an order.communication service provider for providing any
information, facilities, or assistance in accordance
with such a directive.

CRS-23
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
section 105B order: The DNI and theMaintenance of records under new section 703(k):Similar provision, new section 703(k) of FISA,
SC shall retain an order issued under section 105BA record of a proceeding under this section,maintenance of records under new section 702(k).
SA, as amended, for 10 years.including petitions filed, orders granted, and
statements of reasons for decision, shall be
maintained under security measures adopted by the
Chief Justice of the United States, in consultation
with the AG and the DNI.
All petitions under this section shall be filed under
seal. In any proceedings under this section, the court
shall, upon request of the government, review ex
iki/CRS-RL34277parte and in camera any government submission, or
g/wportions of a submission, which may include
s.orclassified information. Directives made or orders
leakgranted under new section 703 must be retained for
at least 10 years.
://wiki
httpSC assessment of compliance with a sectionNo similar provision, but see, new sectionsNo similar provision, but see, new sections
order: At least quarterly during the pendency703(l)(3)(A) and 703(l)(3)(C) of FISA. New section702(l)(3)(A) and 702(l)(3)(C).


an order or an extension of a order, the FISC must703(l)(3)(A) requires the head of each element of the
sess compliance with its order and review theintelligence community conducting an acquisition
stances under which information concerningunder new section 703(a) to conduct an annual
.S. persons was acquired, retained, andreview of the acquisition to determine whether there
inated. is reason to believe that foreign intelligence
information has been or will be obtained from the
acquisition, and to provide that review to the FISC.
This review shall provide, with respect to such
acquisitions, the number of disseminated intelligence
reports containing a reference to a U.S. person
identity; the number of U.S. person identities

CRS-24
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
subsequently disseminated by that element in
response to requests for identities that were not
referred to by name or title in the original reporting;
and the number of targets that were later determined
to be located in the United States and the number of
persons located in the United States whose
communications were reviewed. Such review is to
be used by the head of each such element of the
intelligence community to evaluate the adequacy of
the minimization procedures utilized by such
iki/CRS-RL34277element or the application of the minimization
g/wprocedures to a particular acquisition authorized
s.orunder new subsection 703(a) of FISA.
leak
New section 703(l)(3)(C) requires the head of each
://wikisuch element of the intelligence community to
httpprovide a copy of its annual report to the FISC.
See also, new section 703(l)(1) of FISA, which
provides that at least semiannually, the IGs of DOJ
and any element of the intelligence community
authorized to acquire foreign intelligence
information under new section 703(a) must assess
compliance with targeting and minimization
procedures and submit each assessment to the FISC,
HPSCI and SSCI.



CRS-25
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
FISA
ilar provision.Sec. 104 of the bill, amending section 104 of FISA,Similar provision to S. 2248 (SSCI version), Sec.
50 U.S.C. § 1804, regarding applications for FISC104 of the bill, amending section 104 of FISA, 50
orders authorizing electronic surveillance: ThisU.S.C. § 1804.


provision makes a series of amendments to the
requirements for applications for FISC orders
approving applications authorizing electronic
surveillance under FISA. Paragraphs 104(a)(2) and
(11), and subsection (b) are deleted, with the
iki/CRS-RL34277surrounding provisions redesignated to reflect the
g/wabsence of these provisions. Redesignated section
s.or104(a)(6) is amended to add the Deputy Director of
leakthe FBI, if the Director of the FBI is unavailable and
if designated by the President as a certifying official,
://wikito the list of those permitted to make a certification
httprequired as part of the application. Redesignated
section 104(d) of FISA is amended to add the
Director of the CIA to the list of those who may
request in writing that the AG personally review an
application for electronic surveillance of a target
described under section 101(b)(2) of the FISA.

CRS-26
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
ergency Authorizations
of the bill, amending section 105C of FISA:No similar provision with respect to new section 703Sec. 101(a)(2) of the bill, new section 702(c)(2)(D)
ation of acquisitions ofauthority, but see below regarding changes toof FISA: Emergency procedures:
persons outside the Unitedemergency authority under redesignated sectionNotwithstanding any other provision of this title, the
ho may be communicating with persons105(e) of FISA, formerly section 105(f) of FISA.AG may authorize the emergency employment of
nited States: Under section 105C ofelectronic surveillance for up to 72 hours while an
SA, as amended by the bill, the AG and the DNIFISC order authorizing the surveillance is sought, if
ay jointly authorize an emergency acquisition ofstatutory criteria are met:
n intelligence information as defined in section
iki/CRS-RL34277FISA (see glossary) for up to
g/wdays if the DNI and the AG jointly determine that
s.or criteria have been met:
leak
a requirement that the AG and DNI — the AG must reasonably determine that an
://wikiintly determine that an emergency situation existsemergency situation exists with respect to the
httpation for an acquisitionemployment of electronic surveillance to obtain
er section 105B before an order approving theforeign intelligence information before an order
nder such section can with due diligenceauthorizing such surveillance can with due diligence
ents similar to thosebe obtained
quired for an application for a section 105B
ation, and
— the AG must also reasonably determine that the
factual basis for issuance of an order under new
section 702(c)(2)(B) to approve such an acquisition
exists
— as soon as practicable within 72 hours after the



CRS-27
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
AG authorizes an emergency acquisition, the AG
must submit a request in accordance with new
section 702(c)(2)(B) of FISA to the FISC judge who
was notified at the time the decision to employ
emergency acquisition was made
and the AG, or their designees must — the AG must inform an FISC judge at the time of
an FISC judge having jurisdiction to approvesuch authorization that the decision has been made to
the time of theemploy an emergency acquisition
ation under this section that the decision has
iki/CRS-RL34277made to acquire foreign intelligence
g/wation.
s.or
leak — the AG must require that minimization
procedures meeting the definition of minimization
://wikiprocedures under section 101(h) be followed.
http
rectives to those furnishing aid pursuantNo similar provision.No similar provision.


orization under section
FISA: The AG may direct a
munications service provider or custodian, or an
ployee or agent thereof, who has lawful
to access the information, facilities, or
e needed to accomplish an
ergency acquisition to: furnish the AG forthwith
th such aid in a manner that will protect the
of the acquisition and produce a minimum of
ith the services they provide to the

CRS-28
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
et of the acquisition; and to maintain any records
the acquisition or aid furnished under
procedures approved by the AG and DNI.
ocumentation and 2 certifications to beNo similar provision.No similar provision.
ded by the AG to those furnishing aid under
ation: The AG shall provide to
person providing assistance under such a
e with:
iki/CRS-RL34277ment setting forth the parameters of the
g/we;
s.ortion stating that an emergency
leakation has been issued under section 105C of
SA as amended by the bill, all requirements of
://wikie been met, an FISC judge has been
httped by the AG and the DNI or their designees
e emergency authorization in accordance with
and an application for
ation of the acquisition will be submitted to
SC under section 105C(a) of FISA; and
shall be
pensated at the prevailing rate for aid furnished
e.
Effect of absence of judicial determination finding
probable cause: In the absence of a judicial
determination finding probable cause to believe that



CRS-29
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
the U.S. person that is the subject of an emergency
employment of an acquisition is a foreign power or
an agent of a foreign power, the emergency
employment of such an acquisition shall terminate
when the information sought is obtained, when the
request for a determination is denied, or after the
expiration of 72 hours from the time of authorization
by the Attorney General, whichever is earliest.
Limitations on use of information from
iki/CRS-RL34277surveillance if the Court determines that there is
g/wnot probable cause to believe that a U.S. person is
s.ora foreign power or an agent of a foreign power:
leakIf the Court determines that there is not probable
cause to believe that a U.S. person is a foreign power
://wikior an agent of a foreign power in response to a
httprequest for a determination under clause
702(c)(2)(D)(i)(III), or in any other case where the
emergency employment of an acquisition under this
subparagraph is terminated and no determination
finding probable cause is issued, no information
obtained or evidence derived from such acquisition
shall be received in evidence or otherwise disclosed
in any trial, hearing, or other proceeding in or before
any other authority of the United States, a state, or
political subdivision thereof, and no information
concerning any U.S. person acquired from such
acquisition shall subsequently be used or disclosed



CRS-30
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
in any other manner by federal officers or employees
without the consent of such person, except with the
approval of the AG if the information indicates a
threat of death or serious bodily harm to any person.
ilar provision.Judicial review of a denial of an application to
approve an emergency authorized electronic
surveillance: A denial may be reviewed by the
FISCR, and by the U.S. Supreme Court on a
certiorari petition.
iki/CRS-RL34277
g/wilar provisions.Sec. 105(6) of the bill, amending section 105(e)(1)-Similar provisions.
s.or(6) of FISA, 50 U.S.C. § 1805(e)(1)-(6) (formerly
leaksection 105(f) as redesignated by Sec. 105(5) of the
bill): Emergency authorization of electronic
://wikisurveillance: Notwithstanding any other provision
httpof this title, the AG may authorize the emergency
employment of electronic surveillance for up to 168
hours while an FISC order authorizing the
surveillance is sought, if statutory criteria are met:
— these include a requirement that the AGSimilar provision.


determine 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;

CRS-31
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
— the AG must also determine that the factual basisSimilar provision.
for issuance of an order under title I of FISA to
approve such electronic surveillance exists;
— the AG must make a section 104 application toSimilar provision.
an FISC judge as soon as practicable, but not later
than 168 hours after the Attorney General authorizes
such surveillance;
— the AG must inform, either personally or throughSimilar provision.
iki/CRS-RL34277a designee, a judge having jurisdiction under section
g/w103 at the time of such authorization that the
s.ordecision has been made to employ emergency
leakelectronic surveillance; and
://wiki — if the AG authorizes such emergencySimilar provision.
httpemployment of electronic surveillance under
redesignated paragraph 105(e)(1), he shall require
that the minimization procedures required by this
title for the issuance of a judicial order be followed.
Effect of absence of judicial order approving suchSimilar provision.


electronic surveillance: In the absence of a judicial
order approving such electronic surveillance, the
surveillance shall terminate when the information
sought is obtained, when the application for the order
is denied, or after the expiration of 168 hours from
the time of authorization by the Attorney General,

CRS-32
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
whichever is earliest.
Limitations on use of information fromSimilar provision.
surveillance if application denied or surveillance
terminated without issuance of a court order
approving it: If such an application is denied or the
electronic surveillance is terminated and no order is
issued approving the surveillance, no information
obtained or evidence derived from such surveillance
shall be received in evidence or otherwise disclosed
iki/CRS-RL34277in any trial, hearing, or other proceeding in or before
g/wany authority of the United States, a State, or
s.orpolitical subdivision thereof, and no information
leakconcerning any U.S. person acquired from such
surveillance shall subsequently be used or disclosed
://wikiin any other manner by federal officers or employees
httpwithout the consent of such person, except with the
approval of the AG if the information indicates a
threat of death or serious bodily harm to any person.
The AG shall assess compliance with these
requirements.
Judicial review of a denial of an application toSimilar provision.


approve an emergency authorized electronic
surveillance: A denial may be reviewed by the
FISCR, and by the U.S. Supreme Court on a
certiorari petition.

CRS-33
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
See also, Sec. 104 of the bill, amending section 104Similar provisions.
of FISA provisions for application for FISC orders
approving electronic surveillance; and Sec. 107 of
the bill, making similar changes to the physical
search application and order provisions of FISA,
section 303 and 304 of FISA, 50 U.S.C. §§ 1823 and
1824 of FISA; cf. Sec. 108 of the bill, amending
section 403 of FISA, 50 U.S.C. § 1843, regarding the
installation and use of pen registers or trap and trace
devices.
iki/CRS-RL34277
g/w FISA Other Than Those Dealing with Emergency Authorizations
s.orilar provision. Sec. 105 of the bill, amending section 105 of FISASec. 105(7) of FISA, adding new subsection 105(i),
leak
to add a new subsection (i), 50 U.S.C. 1805(i)50 U.S.C. § 1805(i): Similar provision to section
://wiki(former section 105(i) of FISA was redesignated105(i) in S. 2248 (SSCI version).


httpsection 105(h) by Sec. 105(5) of the bill): Adding
pen registers and trap and trace devices, at
applicant’s request, to orders approving
electronic surveillance: When an order approving
electronic surveillance under FISA is approved, the
FISC judge, upon request of the applicant, shall also
authorize installation and use of pen registers and
trap and trace devices and direct disclosure of
information set forth in section 402(d)(2) of FISA,
including the identity, if known, of the target of the
investigation; the identity, if known, of the person to
whom the phone line or other facility to which the
pen register or trap and trace device is to be attached

CRS-34
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
or applied is leased or in whose name it is listed; the
attributes of the communications to which the order
applies.
FISA
ilar provision.Sec. 106 of the bill, amending section 106(i) ofSec. 106 of the bill, amending section 106(i) of
FISA, 50 U.S.C. § 1806(i), expands from “radioFISA, 50 U.S.C. § 1806(i): similar provision to S.
communications” to “communications” the2248 (SSCI version).
application of this provision dealing with destruction
iki/CRS-RL34277upon recognition of the unintentionally acquiredcontents of communications acquired by a
g/wsurveillance device, unless the AG determines that
s.orthe contents indicate a threat of death or serious
leak
bodily harm to any person.
://wiki
httpUnder new section 704 of FISA, informationSimilar provision, new section 703 of FISA.


acquired from an acquisition conducted under new
section 703 of FISA shall be deemed to be
information acquired from an electronic surveillance
under title I of FISA for purposes of section 106 of
FISA, except for the purposes of section 106(j) of
FISA. Section 106 of FISA deals with use of
information obtained or derived from electronic
surveillance under FISA. Section 106(j) deals with
notification of emergency employment of electronic
surveillance, contents, postponement.

CRS-35
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
hysical Search Provisions of FISA
ilar provision.Sec. 107 of the bill, amending section 303 of FISA,Sec. 107 of the bill, amending section 303 of FISA,
50 U.S.C. § 1823, regarding applications for FISC50 U.S.C. § 1823, regarding applications for FISC
orders authorizing physical searches to gatherorders authorizing physical searches to gather
foreign intelligence information under FISA, andforeign intelligence information under FISA, and
section 304 of FISA, 50 U.S.C. § 1824, dealingsection 304 of FISA, 50 U.S.C. § 1824, dealing
with FISC orders approving physical searches:with FISC orders approving physical searches:
This provision makes a series of amendments to theSimilar provision to Sec. 107 in S. 2248 (SSCI
requirements for applications for FISC ordersversion).


iki/CRS-RL34277approving applications authorizing physical searches
g/wunder FISA and for FISC orders approving such
s.orphysical searches. Paragraphs 303(a)(2), and section
leak304(a)(1) are deleted, with the surrounding
provisions redesignated to reflect the absence of
://wikithese provisions. Redesignated section 303(a)(6) is
httpamended to add the Deputy Director of the FBI, if
designated by the President as a certifying official, to
the list of those permitted to make a certification
required as part of the application. Redesignated
section 303(d)(1)(A) of FISA is amended to add the
Director of the CIA to the list of those who may
request in writing that the AG personally review an
application for physical search of a target described
under section 101(b)(2) of the FISA.
Sec. 107(b)(2) amends section 304(e) of FISA,
dealing with emergency employment of a physical
search pursuant to AG authorization while an FISC

CRS-36
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
order is sought approving the search, similarly to the
way section 105 of the bill amends section 105(e) of
FISA. It extends from 72 hours to 168 hours the
period within which an application for an FISC order
must be filed after the AG’s authorization of
emergency employment of a physical search. It also
provides that, in the absence of a court order
approving the search, such search shall terminate at
the earlier of the date on which the information
sought was obtained, the date when the application
iki/CRS-RL34277for a court order was denied, or the expiration of 168
g/whours from the time of the AG authorization.
s.or
leakergency Installation and Use of Pen Registers and Trap and Trace Devices
://wikiilar provision.Sec. 108 of the bill amends section 403 of FISA, 50Sec. 108 of the bill, amendments to section 403 of
httpU.S.C. § 1843, dealing with emergency installationFISA regarding emergency installation and use of
and use of pen registers or trap and trace devicespen registers or trap and trace devices under
under FISA. Sec. 108 of the bill amends sectionFISA: similar to Sec. 108 of the S. 2248 (SSCI

403 of FISA, 50 U.S.C. § 1843, to extend from 48 toversion).


168 hours the period after an emergency
authorization by the AG of installation and use of a
pen register or trap and trace device is permitted
while an application is filed pursuant to section 402
of FISA, 50 U.S.C. § 1842, seeking court
authorization of the pen register or trap and trace
device. In the absence of an order approving the
installation and use of the pen register or trap and
trace device, that installation and use must terminate

CRS-37
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
at the earlier of when the information sought is
obtained; when the application for the order is
denied; or 168 (formerly 48) hours after the time of
the emergency authorization by the AG.
t

5 of the bill, new section 105D of FISA:New section 703(l) of FISA deals with oversight,Similar provision, new section 703(l) of FISA,


gressional oversight of acquisitions of non-including congressional oversight, of proceduresdealing with oversight, including congressional
S. persons located outside the United Statesfor acquisition of communications of personsoversight, of procedures for acquisition of
iki/CRS-RL34277ho may be communicating with persons insidenited States: reasonably believed to be located outside theUnited States to acquire foreign intelligencecommunications of persons reasonably believed tobe located outside the United States to acquire
g/winformation, while Sec. 103 of the bill addressesforeign intelligence information, while Sec. 103 of
s.orApplications, procedures, orders: Within 7submittal to Congress of certain FISC orders: Atthe bill addresses submittal to Congress of certain
leak
s after submission of a section 105B(a)least semiannually under new section 703(l)(4) ofFISC orders.


://wikication or issuance of an FISC order underFISA, the AG is required to fully inform, in a
http105B(e) approving such application, the DNImanner consistent with national security, the
ust submit to the House Permanentcongressional intelligence committees, and the
lect Committee on Intelligence (HPSCI), theHouse and Senate Judiciary Committees, concerning
nate Select Committee on Intelligence (SSCI), andimplementation of S. 2248. Each report is to include
udiciary Committees: any certifications made under new section 703(g) of
in the case of an application, a copy of theFISA during the reporting period; any directives
on, including certification made undermade under new section 703(h) of FISA during the
aryreporting period; judicial review of such
applicationcertifications and targeting and minimization
s submitted; andprocedures utilized with respect to such acquisition,
he case of an order, a copy of the order,including a copy of any order or pleading in
the procedures and guidelines referred toconnection with such review that contains significant
es to be used bylegal interpretation of the provisions of FISA; any

CRS-38
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
AG and DNI to determine that there is reasonableactions taken to challenge or enforce a directive
ets of the acquisition are outsideunder paragraphs (4) or (5) of subsection (h); any
persons; minimizationcompliance reviews conducted by the Department of
uidelines to be used to ensure thatJustice or the Office of the Director of National
ill be filed, if otherwiseIntelligence of acquisitions authorized under
FISA, when a significant purpose of ansubsection (a); a description of any incidents of
mmunications of anoncompliance with a directive issued by the
ecific U.S. person reasonably believed to beAttorney General and the Director of National
Intelligence under subsection (h), including
incidents of noncompliance by an element of the
iki/CRS-RL34277intelligence community with targeting or
g/wminimization procedures; and incidents of
s.ornoncompliance by a specified person to whom the
leakAG and DNI issued a directive under subsection (h);
any procedures implementing this section; and any
://wikiannual review conducted pursuant to paragraph
http 703(l)(3).
Sec. 103 of the bill, amending section 601(a)(5) ofSimilar provision, Sec. 103 of the bill, amending
FISA, 50 U.S.C. § 1871(a)(5), requires thesection 601(a)(5) of FISA, 50 U.S.C. § 1871(a)(5).


semiannual reports of the AG submitted to HPSCI,
SSCI, and the House and Senate Judiciary
Committees under this section to include, in part, all
FISC or FISCR orders, as well as decisions or
opinions of such courts, that include significant
construction or interpretation of the provisions of
FISA.

CRS-39
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
) Regular audits by the Inspector General (IG)Assessments under new section 703(l)(2) of FISASimilar provision to S. 2248 (SSCI version), new
U.S. Department of Justice (DOJ): Within 120by the IGs of DOJ and of any element of thesection 702(l)(2) of FISA.
s of enactment of new section 105D, the IG ofintelligence community authorized to acquire
J must complete an audit on implementation andforeign intelligence information under new
pliance with the procedures and guidelinessection 703(a) of FISA: These IGs are to review
(1)(E) and submit tocompliance of their agency or element with targeting
, SSCI, and House and Senate Judiciaryand minimization procedures; with respect to new
mmittees, the AG, the DNI, and the FISC, thesection 703(a) acquisitions, the number of U.S.
person identities disseminated in intelligence reports
cluding, for each order authorizing acquisition ofor in response to subsequent requests for identities
iki/CRS-RL34277n intelligence information under section 105B:that were not referred to by name or title in the
g/wber of targets of an acquisition lateroriginal reporting; and, with respect to such
s.orined to be located in the United States;acquisitions, the number of targets later determined
leakber of persons located in the Unitedto be located in the United States and the number of
munications have been acquiredpersons located in the United States whose
://wikicommunications were reviewed. These assessments
httpber of reports disseminated containingare to be disseminated to the AG, the DNI, and the
ation on a U.S. person that was collectedcongressional intelligence committees.
ber of applications submitted forNew section 703(l)(3) of FISA requires similarSimilar provision to S. 2248 (SSCI version), new
al of electronic surveillance under section 104information to be included in annual reviewssection 702(l)(3) of FISA.


ets whose communications were acquiredconducted by the head of an element of the
intelligence community conducting an acquisition
authorized under new section 703(a) of FISA. These
e report to these congressional committees and toare used by the elements to evaluate adequacy of
e FISC must be submitted by the AG within 30minimization procedures used by the element or
s after completion of the audit.application of such procedures to a particular
authorized acquisition. These annual reviews are to

CRS-40
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
be provided to the FISC, but are also included in the
AG’s semiannual reports to the congressional
intelligence committees and the House and Senate
Judiciary Committees under new section 703(l)(4),
discussed above.
Compliance reports: Within 60 days ofIncidents of non-compliance in connection withSimilar provision to S. 2248 (SSCI version), new
ent of new section 105D, and every 120 daysacquisitions under new section 703 of FISA bysection 702(l)(4) of FISA.
ereafter, the DNI and the AG must submit to theelements of the intelligence community or by those
, SSCI, and House and Senate Judiciaryreceiving directives to furnish aid to the government
iki/CRS-RL34277mittees and the FISC a report concerningwith respect to such acquisitions are included in the
g/wcompliance by an element of theAG’s semiannual reports to the HPSCI, the SSCI,
s.orence community or by a person furnishing aidand the House and Senate Judiciary Committees
leakthe government with an order issued under sectionunder new section 703(l)(4) of FISA.
B(e) approving an application authorizing
://wiki of the contents of communications of
httpU.S. persons outside the United States who may
municating with persons inside the United
covers non-compliance by an element
ence community with procedures or
idelines referred to in section 105B(e)(1)(E), or
compliance with a directive by a person
shing aid to the government under such an
Annual report on emergency authority: TheNo similar provision.No similar provision.


and the AG must submit annual reports to the
, SSCI, and House and Senate Judiciary

CRS-41
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
mittees containing the number of section 105C
ergency authorizations and descriptions of any
compliance with such emergency
ations.
c. 6 of the bill, new section 105E of FISA:No similar provision, but the frequency ofSimilar provisions in new sections 702(l)(2),
ssemination of communications of non-U.S.dissemination of U.S. person identity information is702(l)(3), 703(l)(4), and 702(f) to those referred to in
the United States whotracked in the agency assessments required underS. 2248 (SSCI version).


e communicating with persons in the Unitednew section 703(l)(2); in the annual review by the
Disclosure or dissemination of the contentsheads of elements of the intelligence community
iki/CRS-RL34277munications collected under an acquisitionconducting an acquisition authorized under section
g/w of FISA or an emergency703(l)(3); and, by virtue of the inclusion of such
s.oration under section 105C of FISA, andannual reviews in the semiannual reports to Congress
leakence reports based on such contents, withunder new section 703(l)(4). Cf., minimization
ation that identifies any U.S. person, isprocedures adopted by the AG, in consultation with
://wiki a federal officer or employeethe DNI, under new section 703(f) of FISA, which
http rate is not less than the minimummust be consistent with the requirements of section
payable under 5 U.S.C. § 5382 (relating to rates101(h) of FISA (see glossary).
for the Senior Executive Service) determines
of the U.S. person is necessary to
n intelligence collected under
or section 105C or assess the
portance of such information; and to protect U.S.
, U.S. citizens, employees or
embers of the U.S. Armed Forces.

CRS-42
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
SC En Banc Authority and Other FISC Matters
of the bill, new subsection 103(g) of FISA:Sec. 109 of the bill, amending section 103(a) ofSec. 109(b) of the bill, amending section 103(a) of
SC en banc: In any case where the FISC or anFISA: FISC en banc: As amended, section 103(a)FISA: FISC en banc: Similar provision to that in S.
SC judge is required to review a matter underof FISA provides that the FISC may, on its own2248 (SSCI version).
SA, the FISC may, at the discretion of the court,initiative, or upon the request of the government in
iew the matter and issue any ordersany proceeding or a party under section 501(f) or
section 703(h)(4) or (5), hold a hearing or rehearing
en banc, when ordered by a majority of the FISC
judges upon a determination that en banc
iki/CRS-RL34277consideration is necessary to secure or maintain
g/wuniformity of the court’s decisions; or the proceeding
s.orinvolves a question of exceptional importance. The
leakcourt en banc may exercise any authority granted by
FISA to an FISC judge.
://wiki
httpSec. 109(b)(2) of the bill makes conforming
amendments to section 103(a) of FISA, 50 U.S.C. §

1803(a), and section 302(c) of FISA, 50 U.S.C. §


1833(c).


the bill, other FISC matters:Sec. 109(a) and (c) and Sec. 110 of the bill, otherSec. 109(a) of the bill, FISC: Sec. 109(a) of the bill
is section increases the size of the FISC from 11FISC matters: Sec. 109(a) of the bill amendsamends section103(a) of FISA, 50 U.S.C. § 1803(a)
es to 15, and permits such judges to be drawnsection 103(a) of FISA, 50 U.S.C. § 1803(a) toto permit FISC judges to be drawn from “at least”
“at least” seven of the U.S. judicial circuits. Itpermit FISC judges to be drawn from “at least”seven of the U.S. judicial circuits.


akes certain non-substantive changes toseven of the U.S. judicial circuits.
SA, 50 U.S.C.§ 1803(a).
w sentence to that subsectionNo similar provision.
an FISC judge, within 24 hours of receipt

CRS-43
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
the FISC, to make a
ination to approve, deny, or modify an
itted under sections 105(f), 304(e)

3, 50 U.S.C. §§ 1805(f), 1824(e), and 1843,


eillance, physical
ister or
device commenced under an
ergency authorization.
similar provision.Sec. 109(c) of the bill amends section 103 of FISA toSimilar provision to S. 2248 (SSCI version), Sec.
iki/CRS-RL34277redesignate subsection (f) as subsection (g) and to109(c) of the bill, amending section 103(f)(1) and (2)
g/winsert a new subsection (f) permitting a judge of theof FISA.
s.orFISC, the FISCR or a judge of that court, or the U.S.
leakSupreme Court or a justice of that court, to, in
accordance with the rules of their respective courts,
://wikienter a stay of an order or an order modifying an
httporder of the FISC or the FISCR entered under any
title of FISA, while the FISC conducts a rehearing,
while an appeal is pending before the FISCR, or
while a petition of certiorari is pending in the U.S.
Supreme Court, or during the pendency of any
review by that court. This authority is to apply to an
order entered under any FISA provision.
Sec. 110 of the bill makes technical and conformingSimilar provision to S. 2248 (SSCI version), Sec.
amendments to section 103(e) of FISA. As111 of the bill.


amended, the section would address the jurisdiction
of the FISC petition review pool over petitions filed

CRS-44
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
pursuant to “sections 501(f)(1) or 703” of FISA, and
publication of rules of procedure to govern its review
of such petitions. This replaces language reflecting
the enactment of P.L. 110-55 on August 5, 2007,
which referred to petitions filed under “sections
105B(h) and 501(f)(1)” of FISA. Section 105B is
among the sections to be repealed by Sec. 302(b) of
S. 2248.
clusivity
iki/CRS-RL34277 the bill, reiteration of FISA as exclusiveSec. 102 of the bill, adding new section 112 toSec. 102 of the bill, adding new section 112 to
g/weans by which electronic surveillance may beFISA: Statement of exclusive means by whichFISA: Statement of exclusive means by which
s.orducted for gathering foreign intelligenceelectronic surveillance and interception ofelectronic surveillance and interception of certain
leak
ormation, with one exception: Provides that,domestic communications may be conducted: communications may be conducted: New section
://wikianding any other provision of law, FISA112(a) of FISA provides that FISA shall be the
httpsive means by which electronicexclusive means for targeting U.S. persons for the
eillance may be conducted for the purpose ofpurpose of acquiring their communications or
thering foreign intelligence information, untilcommunications information for foreign intelligence
authorization for electronicpurposes, whether such persons are inside the United
eillance, other than an amendment to FISA, isStates or outside the United States, except in cases
acted. Such specific authorization shall be thewhere specific statutory authorization exists to
exception. obtain communications information without an order
under FISA.
New section 112 of FISA provides that “ChaptersNew section 112(b) of FISA, provides that chapters
119 and 121 of title 18, United States Code, and119 and 121 of title 18, United States Code, and
[FISA] shall be the exclusive means by whichFISA shall be the exclusive means by which
electronic surveillance (as defined in section 101(f),electronic surveillance and the interception of



CRS-45
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
regardless of the limitation of section 701) and thedomestic wire, oral, or electronic communications
interception of domestic wire, oral, or electronicmay be conducted.
communications may be conducted.”
Under new subsection 112(c) of FISA, subsections
112(a) and (b) shall apply unless specific statutory
authorization for electronic surveillance, other than
as an amendment to FISA, is enacted. Such specific
statutory authorization shall be the only exception to
subsections 112 (a) and (b) of FISA.
iki/CRS-RL34277
g/w(b) Conforming Amendments-
s.or
leak18 U.S.C. § 2511(2)(a) is amended by adding at the
end a requirement that a certification under 18
://wikiU.S.C. § 2511(2)(a)(ii)(B) for assistance to obtain
httpforeign intelligence information shall identify the
specific provision of the FISA that provides an
exception from providing a court order, and shall
certify that the statutory requirements of such
provision have been met.
Conforming amendments are made to the FISA table
of contents.



CRS-46
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
Wartime Authority

10 of the bill, enhancement of wartimeNo similar provision.No similar provision.


: FISA currently provides for the use of
ectronic surveillance, physical search, and
gisters and trap and
ices without a court order under FISA to
ther foreign intelligence information for 15
s after a declaration of war by Congress
sections 111, 309 and 404 of FISA, 50 U.S.C.
44. Section 10 would amend
iki/CRS-RL34277h of these sections to permit the use of each of
g/westigative techniques without a court order
s.order FISA to collect foreign intelligence
leakation for 15 calendar days after a declaration
Congress “or an authorization for the use
://wiki military force described in section 2(c)(2) of the
http Powers Resolution, 50 U.S.C. § 1541(c)(2), if
ation contains a specific authorization
n intelligence collection under this section,
ongress is unable to convene because of an
upon the United States.”
Warrantless Surveillance Programs Conducted on or after September 11, 2001, including Terrorist Surveillance Program
the bill, audit of warrantlessNo similar provision.Sec. 110 of the amendment in the nature of a
tersubstitute to S. 2248 is similar to Sec. 11 of H.R.
rrorist 3773.


eillance Program: Within 180 days of
ent of the RESTORE Act, the IG of DOJ

CRS-47
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
ust complete an audit of all federal programs
olving acquisition of communications conducted
order on or after September 11, 2001,
the Terrorist Surveillance Program. This
acquiring all relevant documents,
memoranda concerning a program’s legal
, authorizations of a program, certifications
munications carriers, and court orders.
port to Congress: Within 30 days of completion
G of DOJ is directed to submit to
iki/CRS-RL34277, SSCI, and the House and Senate Judiciary
g/wmittees a report containing the results of the
s.or all documents acquired pursuant to
leakitted in an
://wiki, but may have a classified annex.
httppedited security clearances: The DNI is to
re that the process for investigation and
udication of an application by the IG of DOJ or
fice of the IG of DOJ
r a security clearance needed for conduct of this
as possible.



CRS-48
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
cquisition of Communications of U.S. Persons
the bill, record-keeping system onNo similar provision.No similar provision.
sition of communications of U.S. persons:
quires the DNI and AG to jointly develop and
aintain a record-keeping system to keep track of
where the identity of a U.S. person whose
munications were acquired was disclosed by an
ent of the intelligence community that collected
munications to other federal departments or
encies; and the federal department or agency to
iki/CRS-RL34277 the identity was disclosed.
g/w
s.or report to Congress: Requires the DNI and
leakit an annual report on this record-
system to the HPSCI, SSCI, and the House
://wikiudiciary Committees. These reports are
httpe the number of instances where such
ere made.
thorization for Increased Resources Relating to Foreign Intelligence Surveillance
the bill, authorization for increasedNo similar provision.No similar provision.


ating to foreign intelligence
rveillance:
ation of appropriations: Authorizes
ities of the Office of the IG
ents of the National Security
vision (NSD), and to the National Security

CRS-49
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
ency (NSA) such sums as may be necessary to
eet personnel and information technology demands
ely and efficient processing of
submissions to the FISC, audit
requirements under new section 105D
ISA, Sec. 10 of the bill (dealing with warrantless
surveillance, physical searches, or pen
isters and trap and trace devices in times of war,
hen an attack on the United States has prevented
ess from convening), and the record-
eping system and reporting requirements under
iki/CRS-RL34277
g/w
s.oruthorization of additional personnel for NSD,
leakI SC:
://wikies additional personnel for the NSD of DOJodification and renewal of
httpSA for orders under FISA for
n intelligence purposes. Such personnel are to
ned by the AG to appropriate office of the
telligence community to directly assist personnel
such applications and in prompt and
e oversight of the activities of such agencies
SC orders.
es additional legal and other personnel as
out prompt and timely preparation of
SA approving
eillance for foreign intelligence



CRS-50
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
ned to and among the intelligence community,
FBI field offices, so that they may directly
in preparation of such applications.
es additional staff personnel for the FISC as
ay be needed to facilitate prompt and timely
the FISC of applications for orders
ing electronic surveillance under FISA for
ence purposes.
iki/CRS-RL34277 the bill, document management systemNo similar provision.No similar provision.


g/wr applications for orders approving electronic
s.orrveillance: Requires the AG, in consultation with
leake DNI and the FISC, to develop and implement a
classified document management system
://wikiitting prompt preparation, modification, and
httpiew of FISA applications by appropriate
of DOJ, FBI, NSA, and other elements of
overnment before their submission to
ISC. The system is to permit and facilitate
ompt submittal of applications to the FISC and
pt transmittal of FISC rulings to personnel
itting such applications, and to provide for
age and retrieval of all
ated matters with the FISC and
heir secure transmission to the National
chives and Records Administration (NARA).

CRS-51
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
the bill, training of intelligenceNo similar provision.No similar provision.
nity personnel in foreign intelligence
The DNI, in consultation with
G, is directed to develop regulations to
cting and seeking
al of electronic surveillance, physical
stallation and use of pen registers
trace devices on an emergency basis,
roperly submitting and
ing applications and orders under FISA. The
I, in consultation with the AG, is also directed to
iki/CRS-RL34277SA and related legal
g/watters for applicable agencies of the intelligence
s.ormunity.
leak
ovision of Information on Terrorist Surveillance Program and Similar Programs to Each Member of HPSCI and SSCI
://wiki
httpc. 16 of the bill, information for Congress onNo similar provision.No similar provision.


errorist Surveillance Program and similar
: Within 7 days of enactment of the bill,
President is directed to fully inform each member
PSCI and SSCI on the Terrorist Surveillance
ram and any program in existence from
ber 11, 2001 until the bill’s effective date,
olves, in whole or in part, electronic
eillance of U.S. persons in the United States for
n intelligence or other purposes, which is
any federal department, agency, or
ent or any entity at the direction of a federal
ent, agency or element, without fully

CRS-52
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
mplying with the procedures of FISA or chapter
.S.C.
cal and Conforming Amendments
the bill, technical and conforming
endments: This section:
ends the table of contents of FISA to reflectSimilar provisions in that Secs. 101(b), 102(b), 205,Similar provisions in that Secs. 101(b) and 102(b)(2)
es made by the bill. and 302 of the bill amend the table of contents ofof the bill amend the table of contents of FISA to
FISA to reflect changes made by the bill.reflect changes made by the bill.
iki/CRS-RL34277es “105B(h) or” from the first and secondSimilar provision, Sec. 110 of the bill.Similar provision, Sec. 111 of the bill.
g/wraphs of section 103(e) of FISA, 50 U.S.C. §
s.ors amended by the bill, there is no
leak(h) in section 105B of FISA. As amended
the Protect America Act, P.L. 110-55, section
://wikiISA provides authority for a person
httping a directive to furnish aid to the government
connection with an acquisition under section 105B
hallenge the legality of the directive by filing a
SC petition review pool

103(e) of FISA, 50 U.S.C.


repeals Secs. 4 and 6 of the Protect America Act,No similar provision.No similar provision.


55, dealing with reports to Congress, and
e date and transitional procedures,
ely.

CRS-53
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
Provisions and Transition Provisions
18 of the bill, December 31, 2009, sunset;Sec. 101(c) of the bill, December 31, 2013, sunsetSec. 101(c) of the bill, December 31, 2011, sunset
Except with respect toof Secs. 101(a)(2) and (b) of the bill; Sec. 302of Secs. 101(a)(2) and (b) of the bill: Under Sec.
quisitions authorized before the sunset, sectionseffective date; transition procedures: Under Sec.101(c) of the bill, the amendments made by Sec.
5B, 105C, and 105D of FISA would be101(c) of the bill, Secs. 101(a)(2) and (b) of the bill101(a)(2) and (b) shall cease to have effect on
on December 31, 2009. Those acquisitionswould sunset on December 31, 2013, except thatDecember 31, 2011, except that section 702(h)(3) of
ed under section 105B of FISA before thesection 703(h)(3) of FISA would remain in effectFISA would remain in effect with respect to any
nset would continue in effect until the date ofwith respect to any directive issued pursuant todirective issued pursuant to section 702(h) of FISA
ation or order.section 703(h) of FISA during the period suchduring the period such directive was in effect. The
directive was in effect. The use of informationuse of information acquired by an acquisition
acquired by an acquisition conducted under sectionconducted under section 702 of FISA shall continue
703 of FISA shall continue to be governed by theto be governed by the provisions of section 703 of
iki/CRS-RL34277provisions of section 704 of FISA.that act. Cf., transition procedures addressed in new
g/wsection 702(c)(4) of FISA, discussed above.
s.or
leakSection 302(b) of the bill repeals sections 105A,
://wiki105B, and 105C of FISA, except as provided insection 302(c) of the bill.
http
ed under section 105B of FISASomewhat similar, but not identical, provision forNo similar provision.


ent of H.R. 3773 would remain intransitional procedures under Sec. 302 of S. 2248
ation orapplicable to orders, authorizations, and directives
180 days after enactment, whichever is earlier.under the Protect America Act, P.L. 110-55; and
ithin 30 days after expiration of all section 105Bunder S. 2248. Under the new procedures, any
ations of acquisitions of foreign intelligenceorders issued under FISA or Sec. 6(b) of P.L. 110-55
ation made before the date of enactment ofin effect on the date of enactment of S. 2248 shall
the DNI and AG are directed to submit toremain in effect until the date of expiration, and shall
e HPSCI, SSCI, and the House and Senatebe reauthorized by the FISC at the request of the
diciary Committees a report on suchapplicant if the circumstances continue to justify
rizations, including the number of persons inissuance of the order under the provisions of FISA as
munications have beenin effect on the day before P.L. 110-55 was enacted,
that section; the number of reportsexcept as amended by sections 102-109 of S. 2248.
inated containing information on a U.S.Authorizations and directives in effect on the date of

CRS-54
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
ber ofenactment of S. 2248 shall remain in effect until
ions submitted based uponexpiration of the authorization or directive. Those
ation collected pursuant to an acquisitionauthorized under P.L.110-55 shall continue to be
ed under section 105B of FISA in effect thegoverned by its provisions, except that they shall be
before enactment of H.R. 3773; descriptions ofdeemed electronic surveillance. Information
incidents of non-compliance with an acquisitionacquired from acquisitions under P.L. 110-55 shall
an element of the intelligencebe deemed acquired from electronic surveillance,
munity or a person receiving a directive.except for purposes of subsection 106(j) of FISA, 50
U.S.C. § 1806(j) (dealing with notification of
emergency employment of electronic surveillance,
contents, postponement).
iki/CRS-RL34277Orders under new title VII of FISA in effect onDecember 31, 2013, shall continue in effect until the
g/wexpiration date of the order, and be governed by the
s.orapplicable provisions of FISA as amended by Sec.
leak101 of S. 2248. Sec. 302 of S. 2248 also provides
://wikitransitional procedures with respect to authorizations
httpand directives in effect on December 31, 2013.
Section 302 permits the FISC, at the request of the
applicant, to extinguish extant authorizations to
conduct electronic surveillance under FISA.
Protection from liability: Sec. 302(c) provides that
section 105B(1) of FISA shall remain in effect with
respect to any directives issued pursuant to section
105B for information, facilities, or assistance
provided during the period such directive was or is in
effect.
S. 2248 does not have a reporting requirement
parallel to that included in H.R. 3773.



CRS-55
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
Certifications for Electronic Communications Service Providers Furnishing Aid to the Government Regarding Lawfulness of Electronic Surveillance
FISA
the bill, certification to communicationsNo similar provision.No similar provision.
that acquisitions are authorized
ISA:
Section 102(a) of FISA: This section requires
G provide a carrier furnishing aid to the
vernment in connection with an electronic
eillance under section 102 of FISA, 50 U.S.C. §
a certification stating that the electronic
eillance is authorized under this section and that
iki/CRS-RL34277ents of the section have been met.
g/wSection 105(c)(2) of FISA: This section requires
s.oring electronic surveillance under
leak
SA to direct an applicant for the
://wikiide a [specified communication carrier
httpmon] carrier, landlord, custodian or
aid to the government with
that the electronic surveillance
ed under this section and that all
ents of the section have been met.
Limitations Applicable to Violations of Section 109 of FISA
the bill, statute of limitations: ThisNo similar provision.No similar provision.


ear statute of
itations provision to section 109 of FISA, 50
to be applicable to any offense
mitted before the enactment of H.R. 3773, if the
itations applicable to that offense has
ent.

CRS-56
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
the bill, “No rights under theNo similar provision.No similar provision.
RE Act for undocumented aliens”: This
the RESTORE Act and
endments made by it are not to be construed to
eillance of, or grant any rights to, an
itted to be in or remain in the United
the bill, surveillance to protect theNo similar provision.No similar provision.
ited States: This section provides that the
ORE Act and any amendments made by it are
t to be construed to prohibit the intelligence
munity from conducting lawful surveillance
iki/CRS-RL34277 to:
g/went Osama Bin Laden, al Qaeda, or any other
s.oranization from attacking the
leak
U.S. person, or any ally of the
://wikiited States;
http
and security of members of the
ed Forces or any other federal officer or
ployee involved in protecting the U.S. national
; or
, any U.S. person, or any
of the United States from threats posed by
mass destruction (WMD) or other threats
.
troactive Immunity for Electronic Communications Service Providers Furnishing Aid to the Government
ilar provision.Title II of the bill deals with both retrospectiveNo similar provision.


and prospective protections for electronic
communication service providers furnishing aid
to the government.

CRS-57
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
Sec. 201 of the bill provides pertinent definitions. In
one such definition, the term “covered civil action”
is defined to mean a civil action filed in federal or
state court that alleges that an electronic
communication service provider furnished assistance
to an element of the intelligence community; and
seeks monetary or other relief from the electronic
communication service provider related to the
provision of such assistance.
ilar provision.Sec. 202 of the bill, limitations on civil actionsNo similar provision.


against electronic service providers:
Notwithstanding any other provision of law, Sec.
iki/CRS-RL34277202(a) of the bill bars a covered civil action in afederal or state court, and requires that such an
g/waction must be promptly dismissed, if the AG
s.orcertifies to the court that the assistance alleged to
leak
have been provided by the electronic communication
://wikiservice provider was:
http
— in connection with an intelligence activity
involving communications that was authorized by
the President during the period beginning on
September 11, 2001, and ending on January 17,
2007; and designed to detect or prevent a terrorist
attack, or activities in preparation for a terrorist
attack, against the United States; and
— described in a written request or directive from
the A.G. or the head of an element of the intelligence
community (or the deputy of such person) to the
electronic communication service provider
indicating that the activity was authorized by the
President and determined to be lawful.

CRS-58
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
A covered civil action in federal or state court would
also be barred and should be promptly dismissed if
the AG certifies to the court that the electronic
communication service provider did not provide the
alleged assistance.
Judicial review of such certifications:No similar provision.
Standard of review: Such a certification is to beNo similar provision.
subject to review by a court for abuse of discretion.
Procedure for review, limitations on disclosure:No similar provision.
If the AG files a declaration under 28 U.S.C. § 1746
iki/CRS-RL34277that disclosure of a certification made under Sec.
g/w202(a) of the bill would harm United States national
s.orsecurity, the court shall review the certification in
leakcamera and ex parte, and limit public disclosure
concerning such certification, including any public
://wikiorder following such ex parte review, to a statement
httpthat the conditions of Sec. 202(a) of the bill have
been met, without disclosing the subparagraph of
Sec. 202(a)(1) that is the basis for the certification.
The authorities of the AG under Sec. 202 are to be
performed by the AG or the Acting AG, or a
designee in a position not lower than the Deputy AG.
Nothing in this section shall be construed to limit
any otherwise available immunity, privilege, or
defense under any other provision.
Civil action in State court removal: A civil actionNo similar provision.


brought in State court against a person for providing
assistance to an element of the intelligence
community is to be deemed to arise under the

CRS-59
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
Constitution and laws of the United States and shall
be removable under 28 U.S.C. § 1441.
Effective date and application of Sec. 202 of bill:No similar provision.
This section applies to any covered civil action
pending on or filed after the date of enactment of S.

2248, the FISA Amendments Act of 2007.


ilar provision.Sec. 203 of the bill, new title VIII of FISA:No similar provision.
protection of persons assisting the government:
New section 801 of FISA, pertinent definitions.No similar provision.
Among the definitions in new section 801 of FISA,
iki/CRS-RL34277“assistance” means provision of, or provision ofaccess to, information (including communication
g/wcontents, communications records, or other
s.orinformation relating to a customer or
leak
communication), facilities, or other form of
://wiki assistance.
httpures for Implementing Statutory Defenses for Persons Providing Assistance to an Element of the Intelligence Community
ilar provision.New section 802 of FISA: procedures forNo similar provision.
implementing statutory defenses:
Limitation on civil actions, required AGNo similar provision, but see new section 702(h)(3)
certification: Notwithstanding any other provisionof FISA; conforming amendment to 18 U.S.C. §
of law, this section bars any civil action in federal or2511(2)(a) in Sec. 102(b) of the bill.


state court against any person for providing
assistance to an element of the intelligence
community if the AG certifies:
— that any assistance provided by that person was
provided pursuant to an FISC order;
— that any assistance by that person was provided
pursuant to a certification in writing under 18 U.S.C.
§§ 2511(2)(a)(ii)(B) or 2709(a);

CRS-60
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
— that any assistance by that person was provided
pursuant to a directive under sections 102(a)(4),

105B(e) as in effect the day before enactment of S.


2248, or 703(h) of FISA directing such assistance; or
— the person did not provide the alleged assistance.
Judicial review of such certifications:No similar provision.
Standard of review: Such a certification is to beNo similar provision.
subject to review by a court for abuse of discretion.
Procedure for review, limitation on disclosure: IfNo similar provision.
the AG files a declaration under 28 U.S.C. § 1746
iki/CRS-RL34277that disclosure of a certification made under Sec.
g/w203(a) of the bill would harm United States national
s.orsecurity, the court shall review the certification in
leakcamera and ex parte, and limit public disclosure
concerning such certification, including any public
://wikiorder following such ex parte review, to a statement
httpthat the conditions of Sec. 203(a) of the bill have
been met, without disclosing the subparagraph of
Sec. 203(a)(1) that is the basis for the certification.
Nothing in this section shall be construed to limit
any otherwise available immunity, privilege, or
defense under any other provision.
Civil action in state court, removal: A civil actionNo similar provision.
brought in state court against a person for providing
assistance to an element of the intelligence
community is to be deemed to arise under the
Constitution and laws of the United States and shall
be removable under 28 U.S.C. § 1441.
Effective date and application of Sec. 203 of bill:No similar provision.



CRS-61
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
This section applies to any civil action pending on or
filed after the date of enactment of S. 2248, the FISA
Amendments Act of 2007.
State Investigations
ilar provision.Sec. 204 of the bill, new section 803 of FISA,No similar provision.
preemption of state investigations: This section
provides that no state shall have authority to conduct
an investigation into an electronic communication
service provider’s alleged assistance to an element of
the intelligence community; require through
regulation or any other means the disclosure of
iki/CRS-RL34277information about an electronic communication
g/wservice provider’s alleged assistance to an element of
s.orthe intelligence community; impose any
leakadministrative sanction on an electronic
://wikicommunication service provider for assistance to anelement of the intelligence community; or
httpcommence or maintain a civil action or other
proceeding to enforce a requirement that an
electronic communication service provider disclose
information concerning alleged assistance to an
element of the intelligence community.
The United States may bring suit to enforce the
provisions of new section 803 of FISA.
District Court Jurisdiction: United States districtNo similar provision.
courts shall have jurisdiction over any civil action
brought by the United States to enforce the
provisions of new section 803 of FISA.
Application: This section shall apply to anyNo similar provision.



CRS-62
S. 2248 as reported by the S. 2248, amendment in the nature of a substitute
Senate Select Committee on Intelligencereported by the Senate Judiciary Committee
investigation, action, or proceeding that is pending
on or filed after the date of enactment of S. 2248. the
FISA Amendments Act of 2007.
ilar provision.Title III of the bill, other provisions: No similar provision.


Sec. 301 of the bill is a severability provision.
Sec. 302 of the bill, effective date; repeal; transition
procedures: The date of enactment of S. 2248 is to be
the effective date, except as provided in subsection
302(c), dealing with transitional procedures and
authorizations and directives in effect on the date of
enactment of the bill and on the date the bill sunsets.
iki/CRS-RL34277
g/w
s.or
leak
://wiki
http

Glossary of FISA Terms from 50 U.S.C. § 1801
As used in title I of FISA, 50 U.S.C. § 1801 et seq.:
(a) “Foreign power” means —
(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;
(3) an entity that is openly acknowledged by a foreign government or governments to be
directed and controlled by such foreign government or governments;
(4) a group engaged in international terrorism or activities in preparation therefor;
(5) a foreign-based political organization, not substantially composed of United States
persons; or
(6) an entity that is directed and controlled by a foreign government or governments.
(b) “Agent of a foreign power” means —
(1) any person other than a United States person, who —
(A) acts in the United States as an officer or employee of a foreign power, or as a member
of a foreign power as defined in subsection (a)(4) of this section;
(B) acts for or on behalf of a foreign power which engages in clandestine intelligence
activities in the United States contrary to the interests of the United States, when the
circumstances of such person’s presence in the United States indicate that such person may
engage in such activities in the United States, or when such person knowingly aids or abets
any person in the conduct of such activities or knowingly conspires with any person to
engage in such activities; or
(C) engages in international terrorism or activities in preparation therefore; or
(2) 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).
(c) “International terrorism” means activities that —
(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.
(d) “Sabotage” means activities that involve a violation of chapter 105 of title 18, or that
would involve such a violation if committed against the United States.
(e) “Foreign intelligence information” 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.
(f) “Electronic surveillance” means —
(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.
(g) “Attorney General” means the Attorney General of the United States (or Acting Attorney
General), the Deputy Attorney General, or, upon the designation of the Attorney General,
the Assistant Attorney General designated as the Assistant Attorney General for National
Security under section 507A of title 28, United States Code.



(h) “Minimization procedures,” with respect to electronic surveillance, means —
(1) specific procedures, which shall be adopted by the Attorney General, that are reasonably
designed in light of the purpose and technique of the particular surveillance, to minimize the
acquisition and retention, and prohibit the dissemination, of nonpublicly available
information concerning unconsenting United States persons consistent with the need of the
United States to obtain, produce, and disseminate foreign intelligence information;
(2) procedures that require that nonpublicly available information, which is not foreign
intelligence information, as defined in subsection (e)(1) of this section, 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;
(3) notwithstanding paragraphs (1) and (2), procedures that allow for the retention and
dissemination of information that is evidence of a crime which has been, is being, or is about
to be committed and that is to be retained or disseminated for law enforcement purposes;
and
(4) notwithstanding paragraphs (1), (2), and (3), with respect to any electronic surveillance
approved pursuant to section 1802(a) of this title, procedures that require that no contents
of any communication to which a United States person is a party shall be disclosed,
disseminated, or used for any purpose or retained for longer than 72 hours unless a court
order under section 1805 of this title is obtained or unless the Attorney General determines
that the information indicates a threat of death or serious bodily harm to any person.
(i) “United States person” means 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.
(j) “United States,” when used in a geographic sense, means all areas under the territorial
sovereignty of the United States and the Trust Territory of the Pacific Islands.
(k) “Aggrieved person” means a person who is the target of an electronic surveillance or any
other person whose communications or activities were subject to electronic surveillance.
(l) “Wire communication” means 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.
(m) “Person” means any individual, including any officer or employee of the federal
government, or any group, entity, association, corporation, or foreign power.
(n) “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.
(o) “State” means any State of the United States, the District of Columbia, the
Commonwealth of Puerto Rico, the Trust Territory of the Pacific Islands, and any territory
or possession of the United States.