Foreign Intelligence Surveillance Act: Selected Legislation from the 108th Congress
CRS Report for Congress
Foreign Intelligence Surveillance Act:
Selected Legislation
th
from the 108 Congress
Updated January 11, 2005
Elizabeth B. Bazan
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress
Foreign Intelligence Surveillance Act: Selected 108
Congress Legislation
Summary
The Foreign Intelligence Surveillance Act, 50 U.S.C. § 1801 et seq., (FISA) as
passed in 1978, provided a statutory framework for the use of electronic surveillance
in the context of foreign intelligence gathering. In so doing, Congress sought to
strike a delicate balance between national security interests and personal privacy
rights. Subsequent legislation expanded federal laws dealing with foreign
intelligence gathering to address physical searches, pen registers and trap and trace
devices, and access to certain business records. The Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism (USA PATRIOT) Act of 2001, P.L. 107-56, made significant changes to
some of these provisions. Further amendments to FISA were included in the
Intelligence Authorization Act for Fiscal Year 2002, P.L. 107-108, and the Homeland
Security Act of 2002, P.L. 107-296. In addressing international terrorism or
espionage, the same factual situation may be the focus of both criminal investigations
and foreign intelligence collection efforts. The changes in FISA under these public
laws facilitate information sharing between law enforcement and intelligence
elements. In The 9/11 Commission Report, Final Report of the National Commission
on Terrorist Attacks upon the United States (W. W. Norton 2004) (Final Report),
the 9/11 Commission noted that the removal of the pre-9/11 “wall” between
intelligence and law enforcement “has opened up new opportunities for cooperative
action within the FBI.”
In the 108th Congress, a number of intelligence reform bills were introduced,
including some which pre-dated the release of the Final Report of the 9/11
Commission, while others emerged after its release. On December 17, 2004, the
Intelligence Reform and Terrorism Prevention Act of 2004, P.L. 108-458 (S. 2845),
was signed into law. It included several provisions related to FISA. In addition to
P.L. 108-458, a variety of other bills were introduced with FISA-related provisions.
The FISA provisions of some of these measures were part of larger intelligence
reform proposals. Still others were more narrowly focused measures that would also
have impacted FISA investigations in the post-9/11 environment. This report briefly
discusses the FISA-related aspects of these proposals. For purposes of this report,
the bills addressed are divided generally into two categories: intelligence reform or
reorganization proposals that have FISA provisions, including P.L. 108-458 (S.
1507, S. 1552, S. 1709, S. 2528, and S.Amdt. 536 to S. 113. For a more detailed
discussion of FISA, see CRS Report RL30465, The Foreign Intelligence Surveillance
Act: An Overview of the Statutory Framework and Recent Judicial Decisions, while
a discussion of the amendment in P.L. 108-458 to the FISA definition of “agent of
a foreign power may be found in CRS Report RS22011, Intelligence Reform and
Terrorism Prevention Act of 2004: “Lone Wolf” Amendment to the Foreign
Intelligence Surveillance Act.
Contents
FISA Provisions which are Part of Intelligence Reform or Reorganization
Proposals ....................................................2
Other FISA-Related Bills in the 108th Congress..........................8
Foreign Intelligence Surveillance Act:
th
Selected 108 Congress Legislation
The Foreign Intelligence Surveillance Act, 50 U.S.C. § 1801 et seq.,
(FISA) as passed in 1978, provided a statutory framework for the use of electronic
surveillance in the context of foreign intelligence gathering. In so doing, Congress
sought to strike a delicate balance between national security interests and personal
privacy rights. Subsequent legislation expanded federal laws dealing with foreign
intelligence gathering to address physical searches, pen registers and trap and trace
devices, and access to certain business records. The Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism (USA PATRIOT) Act of 2001, P.L. 107-56, made significant changes to
some of these provisions. Further amendments to FISA were included in the
Intelligence Authorization Act for Fiscal Year 2002, P.L. 107-108, and the Homeland
Security Act of 2002, P.L. 107-296. In addressing international terrorism or
espionage, the same factual situation may be the focus of both criminal investigations
and foreign intelligence collection efforts. The changes in FISA under these public
laws facilitate information sharing between law enforcement and intelligence
elements. In The 9/11 Commission Report, Final Report of the National Commission
on Terrorist Attacks Upon the United States (W. W. Norton 2004) (Final Report),
the 9/11 Commission noted that the removal of the pre-9/11 “wall” between
intelligence and law enforcement “has opened up new opportunities for cooperative
action within the FBI.”1
In the closing days of the 108th Congress, intense activity resulted in passage of
the Intelligence Reform and Terrorism Prevention Act of 2004, P.L. 108-458,
enacted into law on December 17, 2004. This measure, the conference version of S.
2845, was one of several bills which included FISA provisions as part of larger
intelligence reform proposals. Some of these pre-dated the release of the 9/11
Commission’s Final Report, while others emerged after its release. Still others were
more narrowly focused measures that would also have impacted FISA investigations
in the post-9/11 environment. This report briefly discusses these proposals. For
purposes of this report, the bills addressed are divided generally into two categories:
intelligence reform or reorganization proposals that have FISA provisions and other
FISA-related bills. For a more detailed discussion of FISA, see CRS Report
RL30465, The Foreign Intelligence Surveillance Act: An Overview of the Statutory
Framework and Recent Judicial Decisions, by Elizabeth B. Bazan.
1 The 9/11 Commission Report, Final Report of the National Commission on Terrorist
Attacks upon the United States, Ch. 13, Sec. 13.5, at 424 (W. W. Norton 2004) (Final
Report).
FISA Provisions which are Part of Intelligence
Reform or Reorganization Proposals
While not all of the intelligence reform or reorganization proposals introduced
in the 108th Congress addressed FISA, a number had FISA provisions, including:
P.L. 108-458 (S. 2845). Intelligence Reform and Terrorism Prevention Act of 2004,
enacted into law December 17, 2004. Originally introduced on September 23, 2004,
as the National Intelligence Reform Act of 2004, by Senator Susan Collins, for
herself and Senator Joseph Lieberman, reporting an original bill from the Committee
on Governmental Affairs. It passed the Senate with amendments on October 6, 2004
by Yea-Nay Vote, 96-2 (Record Vote Number 199). After H.R. 10 was passed by the
House of Representatives, Section 2 of H.Res. 827 provided that, when S. 2845 was
received from the Senate by the House, the latter bill was to be considered to have
been taken from the Speaker’s table, all but its enacting clause was to be deemed
stricken and the text of H.R. 10 as passed by the House inserted in lieu thereof, and
as so amended, S. 2845 was to be considered passed by the House. H. Res. 827
provided further that the House was to be deemed to have insisted on its amendment
and to have requested a conference with the Senate thereon. S. 2845 passed the
House as amended on October 16, 2004. The conference report, H.Rept. 108-796,
was filed on December 7, 2004. It was agreed to in the House by recorded vote, 336-
75 (Roll no. 544) the same day, and passed the Senate by Yea-Nay Vote, 89-2
(Record Vote Number 216) the following day. The President signed the measure into
law on December 17, 2004, P.L. 108-458, entitled the Intelligence Reform and
Terrorism Prevention Act of 2004.
As enacted, Section 1011 of the measure amended Title I of the National
Security Act of 1947, 50 U.S.C. § 402 et seq., to strike the previous Sections 102
through 104 of the act 50 U.S.C. §§ 403, 403-1, 403-3, and 403-4, and insert new
Sections 102 through 104A. The new Section 102 created the position of Director
of National Intelligence (DNI). Section 102A outlined authorities and
responsibilities of the position. Under the new Section 102A(f)(6) of the National
Security Act, the DNI was given responsibility “to establish requirements and
priorities for foreign intelligence information to be collected under [FISA], and
provide assistance to the Attorney General to ensure that information derived from
electronic surveillance or physical searches under that act is disseminated so that it
may be used efficiently and effectively for foreign intelligence purposes, except that
the Director shall have no authority to direct, manage, or undertake electronic
surveillance or physical search operations pursuant to that act unless otherwise
authorized by statute or Executive order.” New Section 102A(f)(8) of the National
Security Act, as enacted by P.L. 108-458, Section 1011, provided that, “Nothing in
this act shall be construed as affecting the role of the Department of Justice or the
Attorney General with respect to applications under the Foreign Intelligence
Surveillance Act.”
Section 1071(e) of P.L. 108-458, amended FISA to insert “Director of National
Intelligence” in lieu of “Director of Central Intelligence” in each place in which it
appeared.
Section 6001 of P.L. 108-458 amended Sec. 101(b)(1) of FISA, 50 U.S.C. §
1801(b)(1), to add to the list of categories of persons, other than U.S. persons, who
are considered “agents of a foreign power” for purposes of FISA. Under Sec. 6001,
any person, other than a U.S. person, who “engages in international terrorism or
activities in preparation therefore”2 is considered an agent of a foreign power. This
language does not require the government to establish that the person was connected
with an international terrorist organization, foreign government or group. The new
language is subject to the sunset provision in Sec. 224 of the USA PATRIOT Act,
P.L.107-56, including the exception provided in subsection (b) of Sec. 224.
Therefore, Sec. 6001 as amended will sunset on December 31, 2005, except with
respect to any foreign intelligence investigation begun before that date or any
criminal offense or potential offense that began or occurred before that date.3
Section 6002 created additional semiannual reporting requirements under FISA.
Under the new language, the Attorney General, on a semiannual basis, must submit
to the House Permanent Select Committee on Intelligence, the Senate Select
Committee on Intelligence, the House Judiciary Committee and the Senate Judiciary
Committee, in a manner consistent with protection of national security, reports
setting forth with respect to the preceding six month period: “(1) the aggregate
number of persons targeted for orders issued under this act, including a breakdown
of those targeted for–(A) electronic surveillance under section 105 [50 U.S.C. §
1805]; (B) physical searches under section 304 [50 U.S.C. § 1824]; (C) pen registers
under section 402 [50 U.S.C. § 1842]; and (D) access to records under section 501
[50 U.S.C. § 1861]; (2) the number of individuals covered by an order issued
pursuant to section 101(b)(1)(C) [50 U.S.C. § 1801(b)(1)(C)]; (3) the number of
times that the Attorney General has authorized that information obtained under this
act may be used in a criminal proceeding or any information derived therefrom may
be used in a criminal proceeding; (4) a summary of significant legal interpretations
of this act involving matters before the Foreign Intelligence Surveillance Court or the
Foreign Intelligence Surveillance Court of Review, including interpretations
presented in applications or pleadings filed with the Foreign Intelligence Surveillance
Court or the Foreign Intelligence Court of Review by the Department of Justice; and
(5) copies of all decisions (not including orders) or opinions of the Foreign
Intelligence Surveillance Court or Foreign Intelligence Surveillance Court of Review
that include significant construction or interpretation of the provisions of this act.”
H.R. 10. 9/11 Recommendations Implementation Act. Introduced by Representative
J. Dennis Hastert on September 24, 2004, and referred to House Permanent Select
Committee on Intelligence, and in addition to the House Committees on Armed
Services, Education and the Workforce, Energy and Commerce, Financial Services,
Government Reform, International Relations, the Judiciary, Rules, Science,
Transportation and Infrastructure, Ways and Means, and Select Committee on
2 It seems likely that “therefore” was intended to be “therefor,” in view of the phrasing of
the definition of “foreign power” in 50 U.S.C. § 1801(a)(4) and of the definition of “agent
of a foreign power” in 50 U.S.C. § 1801(b)(1).
3 For more information on this provision of P.L. 108-458, see CRS Report RS22011,
Intelligence Reform and Terrorism Prevention Act of 2004: “Lone Wolf” Amendment to the
Foreign Intelligence Surveillance Act, by Elizabeth B. Bazan (December 29, 2004).
Homeland Security, for a period to be subsequently determined by the Speaker, in
each case for consideration of such provisions as fall within the jurisdiction of the
committee concerned. On October 4, 2004, reported out of: House Permanent Select
Committee on Intelligence, amended, H.Rept. 108-724, Part I; House Committee on
Armed Services, amended, H. Rept.108-724, Part II; and House Committee on
Financial Services, amended, H.Rept. 108-724, Part III. On October 5, 2004,
reported out of House Committee on Government Reform, amended, H.Rept. 108-
Also on October 5, 2004, the House Committees on Education and the Workforce,
Energy and Commerce, International Relations, Rules, Science, Transportation, and
Ways and Means, and the House Select Committee on Homeland Security were
discharged. The measure passed the House on October 8, 2004, by recorded vote,
282-134 (Roll no. 523). A supplemental report was filed by the House Judiciary
Committee on November 16, 2004, H.Rept. 108-274, Part VI. As per H.Res. 827,
Section 2, the House was considered to have stricken all but the enacting clause of
S. 2845 as received from the Senate and inserted the text of H.R. 10 as passed by the
House in lieu thereof, to have insisted on its amendment, and to have requested a
conference. For further action, see discussion of P.L.108-458 (S. 2845).
Sec. 1011 of the H.R. 10, among other things, created a new Sec. 102A of the
National Security Act of 1947, dealing with the responsibilities and authorities of the
newly created National Intelligence Director. Sec. 102A(f) stated, in pertinent part,
that “Nothing in this act shall be construed as affecting the role of the Department of
Justice or the Attorney General with respect to applications under the Foreign
Intelligence Surveillance Act.” Under Sec. 1071(e) of the measure, “Director of
Central Intelligence” was replaced with “National Intelligence Director” in each place
in which it appears in FISA. Sec. 2001 of the bill as introduced would have amended
Sec. 101(b)(1) of FISA, 50 U.S.C. § 1801(b)(1), to add to the list of categories of
persons, other than U.S. persons, who are considered “agents of a foreign power” for
purposes of FISA. Under Sec. 2001 as introduced, any person, other than a U.S.
person, who “engages in international terrorism or activities in preparation therefor”
would be considered an agent of a foreign power. This language would not have
required the government to establish that the person was connected with an
international terrorist organization, foreign government or group. During mark-up
of H.R. 10 by the House Judiciary Committee, an amendment offered by
Representative Howard Berman was agreed to by voice vote which would replace
Sec. 2001 as introduced with a new Sec. 2001. The new language would have
created a new Sec. 101A of FISA, 50 U.S.C. § 1801A, which would have provided,
“Upon application by the Federal official applying for an order under this act, the
court may presume that a non-United States person who is knowingly engaged in
sabotage or international terrorism, or activities that are in preparation therefor, is an
agent of a foreign power under section 101(b)(2)(C).” The amendment would also
have made the new language subject to the sunset provision in Sec. 224 of the USA
PATRIOT Act, P.L.107-56, including the exception provided in subsection (b) of
Sec. 224. Therefore, Sec. 2001 as amended would have been subject to sunset on
December 31, 2005, except with respect to any foreign intelligence investigation
begun before that date or any criminal offense or potential offense that began or
occurred before that date.
H.R. 4104. Intelligence Transformation Act of 2004. Introduced April 1, 2004, by
Representative Jane Harman, and referred to House Permanent Select Committee on
Intelligence. Sec. 101 of the bill would, in pertinent part, have amended the National
Security Act of 1947 to strike the existing Section 103 of the act and replace it with
new language. Under new Section 103(b)(6), a newly created Director of National
Intelligence would have had responsibility to “establish requirements and priorities
for foreign intelligence information to be collected under [FISA] and provide
assistance to the Attorney General to ensure that information derived from electronic
surveillance or physical searches under that act is disseminated so it may be used
efficiently and effectively for foreign intelligence purposes, except that the Director
shall have no authority to direct, manage, or undertake electronic surveillance or
physical search operations pursuant to that act unless otherwise authorized by statute
or Executive order.” Under Sec. 502 of H.R. 4104, “Director of Central Intelligence”
was to be replaced with “Director of National Intelligence” in each place in FISA in
which it appeared.
H.R. 5040. 9/11 Commission Report Implementation Act of 2004. Introduced
September 9, 2004, by Representative Christopher Shays, and referred to House
Permanent Select Committee on Intelligence, and in addition to the House
Committees on Armed Services, International Relations, Government Reform,
Judiciary, Rules, Transportation and Infrastructure, Energy and Commerce, Ways and
Means, and House Select Committee on Homeland Security, for a period to be
subsequently determined by the Speaker, in each case for consideration of such
provisions as fall within the jurisdiction of the committee concerned. Referred to
House Subcommittee on Aviation; House Subcommittee on Coast Guard and
Maritime Transportation; House Subcommittee on Economic Development, Public
Buildings and Emergency Management; House Subcommittee on Railroads; House
Subcommittee on Highways, Transit and Pipelines; and House Subcommittee on
Water Resources and Environment of House Transportation and Infrastructure
Committee on September 10, 2004. Referred to the House Energy and Commerce
Committee’s Subcommittee on Telecommunications and the Internet for a period
subsequently determined by the Chairman on October 8, 2004. Under Sec.
132(a)(6), the National Intelligence Director established by the bill would have had
responsibility to “establish requirements and priorities for foreign intelligence
information to be collected under [FISA], and provide assistance to the Attorney
General to ensure that information derived from electronic surveillance or physical
searches under that act is disseminated so that it may be used efficiently and
effectively for foreign intelligence purposes, except that the Director shall have no
authority to direct, manage, or undertake electronic surveillance or physical search
operations pursuant to that act unless otherwise authorized by statute or Executive
order.” Under Sec. 172(e) of the bill, “National Intelligence Director” was to replace
“Director of Central Intelligence” in every place where it appeared in FISA.
H.R. 5150. National Intelligence Reform Act of 2004. Introduced September 24,
2004, by Representative Christopher Shays, for himself and Representative Carolyn
Maloney, and referred to the House Permanent Select Committee on Intelligence. In
Sec. 112(a)(7) of the bill, a newly established National Intelligence Director would
have had responsibility “to establish requirements and priorities for foreign
intelligence information to be collected under [FISA], and provide assistance to the
Attorney General to ensure that information derived from electronic surveillance or
physical searches under that act is disseminated so that it may be used efficiently and
effectively for foreign intelligence purposes, except that the Director shall have no
authority to direct, manage, or undertake electronic surveillance or physical search
operations pursuant to that act unless otherwise authorized by statute or Executive
order.” Under Sec. 302(e) of the bill, “National Intelligence Director” would have
replaced “Director of Central Intelligence” in each place in which it appeared in
FISA.
S. 6. Comprehensive Homeland Security Act of 2003. Introduced January 7, 2003,
by Senator Thomas Daschle, and referred to Senate Committee on the Judiciary. Sec.
pursuant to which a newly established Director of National Intelligence would have
had responsibility “to establish requirements and priorities for foreign intelligence
information to be collected under [FISA], and provide assistance to the Attorney
General to ensure that information derived from electronic surveillance or physical
searches under that act is disseminated so that it may be used efficiently and
effectively for foreign intelligence purposes, except that the Director shall have no
authority to direct, manage, or undertake electronic surveillance or physical search
operations pursuant to that act unless otherwise authorized by statute or Executive
order.” Under to Sec. 10005(f) of the bill, “Director of Central Intelligence” would
have been replaced with “Director of National Intelligence” in every place it appeared
in FISA.
S. 190. Intelligence Community Leadership Act of 2003. Introduced January 16,
2003, by Senator Dianne Feinstein, and referred to the Senate Select Committee on
Intelligence. Section 2 of the bill would have replaced the existing Sec. 103 of the
National Security Act of 1947 with a new Sec. 103, subsection 103(b)(6) of which
would have given the new Director of National Intelligence responsibility “to
establish requirements and priorities for foreign intelligence information to be
collected under [FISA], and provide assistance to the Attorney General to ensure that
information derived from electronic surveillance or physical searches under that act
is disseminated so that it may be used efficiently and effectively for foreign
intelligence purposes, except that the Director shall have no authority to direct,
manage, or undertake electronic surveillance or physical search operations pursuant
to that act unless otherwise authorized by statute or Executive order.” Under Sec.
4(f) of the bill, “Director of Central Intelligence” would have been replaced with
“Director of National Intelligence” in each place in FISA in which it appeared.
S. 1520. 9-11 Memorial Intelligence Reform Act. Introduced July 31, 2003, by
Senator Bob Graham, and referred to the Senate Select Committee on Intelligence.
Sec. 2 of the bill would create a new Sec. 103 of the National Security Act of 1947.
Under the new Sec. 103(b)(6), the newly established Director of National Intelligence
would have had responsibility to “establish requirements and priorities for foreign
intelligence information to be collected under [FISA], and provide assistance to the
Attorney General to ensure that information derived from electronic surveillance or
physical searches under that act is disseminated so that it may be used efficiently and
effectively for foreign intelligence purposes, except that the Director shall have no
authority to direct, manage, or undertake electronic surveillance or physical search
operations pursuant to that act unless otherwise authorized by statute or Executive
order.” Section 8(a)(1) of the bill would have directed the Attorney General, in
consultation with the Director of the FBI, to “provide detailed training to appropriate
personnel of the FBI, and to appropriate personnel of other elements of the
intelligence community, on the availability and utilization of the authorities provided
by [FISA] to address terrorist threats to the United States.” Section 8(b) required the
Attorney General and the Director of the FBI to “jointly take appropriate actions to
ensure that the information acquired through electronic surveillance, searches, and
other activities under [FISA] is disseminated on a timely basis to appropriate
personnel within the [FBI], and appropriate personnel in other elements of the
intelligence community, in order to facilitate the use of such information for analysis
and operations to address terrorists threats to the United States.” Under Section 8(c),
the Attorney General and the Director of the FBI were required to “jointly develop
a plan to utilize the authorities under [FISA] to provide for the full assessment of the
threats posed to the United States by international terrorist groups operating within
the United States, including the determination of the extent to which such groups are
funded or otherwise supported by foreign governments.” In the context of enhanced
counterterrorism training for intelligence community personnel, Subsections
10(1)(A) and (C) of the bill directed the Director of National Intelligence to expand
such training to improve and enhance (A) “intelligence sharing between and among
intelligence personnel and law enforcement personnel; . . . [and] (C) the utilization
of the authorities under [FISA].”
S. 2811. Intelligence Reformation Act of 2004 or 9/11 Act. Introduced September
15, 2004, by Senator Arlen Specter, and referred to Senate Committee on
Governmental Affairs. Under Sec. 132(a)(5), the newly established Director of
Intelligence would have had responsibility “to establish requirements and priorities
for foreign intelligence information to be collected under [FISA], and provide
assistance to the Attorney General to ensure that information derived from electronic
surveillance or physical searches under that act is disseminated so that it may be used
efficiently and effectively for foreign intelligence purposes, except that the Director
shall have no authority to direct, manage, or undertake electronic surveillance or
physical search operations pursuant to that act unless otherwise authorized by statute
or Executive order.” Under Sec. 402(e), “Director of Intelligence” was to replace
“Director of Central Intelligence” in each place it appeared in FISA.
S. 2840. National Intelligence Reform Act of 2004. Introduced September 23, 2004,
by Senator Susan Collins, reporting an original bill from the Senate Committee on
Governmental Affairs. On September 27, 2004, the Senate Committee on
Governmental Affairs filed a written report, S.Rept. 108-359, with additional views.
In Sec. 112, the bill outlined the responsibilities of the new National Intelligence
Director. In Sec. 112(a)(7), the Director was given responsibility “to establish
requirements and priorities for foreign intelligence information to be collected under
[FISA], and provide assistance to the Attorney General to ensure that information
derived from electronic surveillance or physical searches under that act is
disseminated so that it may be used efficiently and effectively for foreign intelligence
purposes, except that the Director shall have no authority to direct, manage, or
undertake electronic surveillance or physical search operations pursuant to that act
unless otherwise authorized by statute or Executive order.” Under Sec. 302(e) of the
bill, “National Intelligence Director” replaced “Director of Central Intelligence” in
each place in which it appeared in FISA.
Senator Pat Roberts’ Draft Bill, dated August 23, 2004. 9-11 National Security
Protection Act. Sec. 102 of the bill would create a new Sec. 102A of the National
Security Act of 1947. Under Sec. 102A(b)(8), the newly established National
Intelligence Director would have had responsibility “to establish requirements and
priorities for foreign intelligence information to be collected under [FISA], and
provide assistance to the Attorney General to ensure that information derived from
electronic surveillance or physical searches under that act is disseminated so that it
may be used efficiently and effectively for foreign intelligence purposes, except that
the Director shall have no authority to direct, manage, or undertake electronic
surveillance or physical search operations pursuant to that act unless otherwise
authorized by statute or Executive order.” Under Sec. 221(e) of the bill, “National
Intelligence Director” would have replaced “Director of Central Intelligence” in each
place where it appeared in FISA.
Other FISA-Related Bills in the 108th Congress
The FISA-related measures in the 108th Congress which did not involve
intelligence reform or reorganization appear to have been more varied in their focus
and approach. These included the following bills:
H.R. 1157. Freedom to Read Protection Act. A bill to amend the Foreign
Intelligence Surveillance Act to exempt bookstores and libraries from orders
requiring the production of any tangible things for certain foreign intelligence
investigations, and for other purposes. Introduced on March 6, 2003, by
Representative Bernard Sanders. Referred to House Judiciary Committee and the
House Permanent Select Committee on Intelligence for a period to be subsequently
determined by the Speaker, in each case for consideration of such provisions as fall
within the jurisdiction of the committee concerned, on March 6, 2003. Referred to
the Subcommittee on Crime, Terrorism, and Homeland Security of the House
Judiciary Committee on May 5, 2003. Among other things, Sec. 2 of the bill
amended Section 501 of FISA, 50 U.S.C. § 1861, to preclude an application for an
order seeking or having the effect of searching for or seizing records of a bookseller
or library documentary materials concerning personally identifiable information
regarding a patron of the library or bookstore. It did not preclude a physical search
for such documentary materials under another provision of law. Sec. 3 of the bill
amended 50 U.S.C. § 1862, with respect to reporting requirements for the Attorney
General to make to the House Judiciary Committee, Senate Judiciary Committee,
House Permanent Select Committee on Intelligence and Senate Committee on
Intelligence. It also required the Attorney General, consistent with protection of U.S.
national security, to make public the information reported to these committees.
H.R. 2242. Tribal Government Amendments to the Homeland Security Act. A bill
to amend the Homeland Security Act of 2002 to include Indian tribes among the
entities consulted with respect to activities carried out by the Secretary of Homeland
Security and for other purposes. Introduced on May 22, 2003, by Representative
Patrick J. Kennedy. On May 22, 2003, referred to the House Committee on
Resources and, in addition, to the House Committee on the Judiciary, the House
Committee on the Budget, the House Permanent Select Committee on Intelligence,
and the House Select Committee on Homeland Security, for a period to be
subsequently determined by the Speaker, in each case for consideration of such
provisions as fall within the jurisdiction of the committee concerned. Referred to the
Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary
Committee on June 25, 2003. Sec. 12(g)(1) would have amended Section 106(k)(1)
of FISA, 50 U.S.C. § 1806(k)(1), to permit federal officers who conduct electronic
surveillance to acquire foreign intelligence information under FISA to consult,
among others, with law enforcement personnel of an Indian tribe. Sec. 12(g)(2)
would also have amended Section 305(k)(1) of FISA, 50 U.S.C. § 1825(k)(1), to
permit federal officers who conduct a physical search under FISA to consult, among
others, with law enforcement personnel of an Indian Tribe.
H.R. 2429. Surveillance Oversight and Disclosure Act of 2003. A bill to amend the
Foreign Intelligence Surveillance Act of 1978 to improve the administration and
oversight of foreign intelligence surveillance, and for other purposes. Introduced
on June 11, 2003, by Representative Joseph M. Hoeffel. On June 11, 2003, referred
to the House Judiciary Committee, the House Permanent Select Committee on
Intelligence, and the House Financial Services Committee, for a period to be
subsequently determined by the Speaker, in each case for consideration of such
provisions as fall within the jurisdiction of the committee concerned. Referred to the
Subcommittee on Financial Institutions and Consumer Credit of House Committee
on Financial Services for a period to be subsequently determined by the Chairman,
on June 23, 2003. Referred to Subcommittee on Commercial and Administrative
Law of House Judiciary Committee on June 25, 2003. Among other things, this
measure would have authorized the Foreign Intelligence Surveillance Court (FISC)
and the Foreign Intelligence Court of Review (Court of Review) to establish rules
and procedures and to take actions necessary to administer FISA. It would have
required reporting of such rules and procedures and any modifications thereof to all
of the judges of the FISC and the Court of Review, the Chief Justice of the United
States, the House Judiciary Committee, the Senate Judiciary Committee, the House
Permanent Select Committee on Intelligence and the Senate Committee on
Intelligence. In addition, it would have established certain public reporting
requirements with respect to electronic surveillance, physical searches, pen registers,
and business records production under FISA.
H.R. 2800. Foreign Operations, Export Financing, and Related Programs
Appropriations Act, 2004. A bill making appropriations for foreign operations,
export financing, and related programs for the fiscal year ending September 30, 2004,
and for other purposes. Introduced/originated in the House on July 21, 2003. On that
day, the House Committee on Appropriations reported an original measure, H.Rept.
Calendar No. 227. Sec. 582 barred the use of funds by the State Department to
support an application under FISA for an order requiring the production of library
circulation records, library patron lists, library Internet records, bookseller sales
records, or bookseller customer lists. Note that H.R. 2673, the Consolidated
Appropriations bill for 2004, which became P.L. 108-199, included appropriations
for Foreign Operations, but does not appear to have included FISA language.
H.R. 3179. Anti-Terrorism Intelligence Tools Improvement Act of 2003. Introduced
September 25, 2003, by Representative James Sensenbrenner, Jr., and referred to
House Committee on Judiciary an House Permanent Select Committee on
Intelligence. Referred to Subcommittee on Crime, Terrorism, and Homeland
Security of House Judiciary Committee on October 22, 2003. Subcommittee
hearings held May 18, 2004. Sec. 4 of the bill would have amended Sec. 101(b)(1)
of FISA, 50 U.S.C. § 1801(b)(1) to include in the definition of an “agent of a foreign
power” any person other than a U.S. person who “engages in international terrorism
or activities in preparation therefor.” Sec. 6 of the bill would have created an
exception to the FISA provisions regarding notification by the United States of
intended use or disclosure of information acquired through a FISA electronic
surveillance, FISA physical search, or FISA pen register or trap and trace device;
motion to suppress; and in camera and ex parte review by the district court, for civil
proceedings or other civil matters under the immigration laws.
H.R. 3352. Security and Freedom Ensured Act of 2003 or SAFE Act. Introduced
on October 21, 2003, by Representative C.L. (Butch) Otter, and referred to the House
Committee on the Judiciary and House Permanent Select Committee on Intelligence.
Referred to the Subcommittee on Crime, Terrorism, and Homeland Security of the
House Judiciary Committee on December 10, 2003. Sec. 2 of the bill would have
amended the roving wiretap provisions of FISA to require that an order approving
such electronic surveillance must specify either the identity of the target or the places
and facilities to which the electronic surveillance is to be directed. In cases where
the facility or place is not known at the time of the issuance of the order, Sec. 2 of the
bill would have required that the electronic surveillance only be conducted when the
person conducting the surveillance has ascertained that the target is present at a
particular facility or place. Sec. 4 of the bill would have required that applications
for FISA orders for production of books, records, papers, documents, or other
tangible things under 50 U.S.C. § 1861, must specify that there are specific and
articulable facts giving reason to believe that the person to whom the records pertain
is a foreign power or agent of a foreign power, and that the court, in issuing its order
must find that there are specific and articulable facts giving reason to believe that the
person to whom the records pertain is a foreign power or an agent of a foreign power
and that the application meets the other requirements of 50 U.S.C. § 1861. Sec. 4 of
the bill also would have amended 50 U.S.C. § 1862 to require the Attorney General,
on a semi-annual basis, to fully inform the House Permanent Select Committee on
Intelligence, the House Judiciary Committee, the Senate Select Committee on
Intelligence and the Senate Judiciary Committee concerning all requests for
production of tangible things under 50 U.S.C. 1861. The Attorney General’s report
to the House and Senate Judiciary Committees would also have been required to
include the total number of applications made under 50 U.S.C. § 1861, and the total
number of such orders granted, modified or denied.
H.R. 3552. A bill to amend the Foreign Intelligence Surveillance Act of 1978 to
cover individuals, other than United States persons, who engage in international
terrorism without affiliation with an international terrorist group. Introduced
November 20, 2003, by Representative Peter King, and referred to the House
Committee on the Judiciary and the House Permanent Select Committee on
Intelligence. Referred to the Subcommittee on Crime, Terrorism, and Homeland
Security of the House Judiciary Committee on December 10, 2003. Sec. 1 of the bill
would have amended the definition of “agent of a foreign power” under FISA to
cover any person other than a U.S. person who engages in international terrorism or
activities in preparation therefor. It would have made this definitional change subject
to sunset December 31, 2005, except for any particular foreign intelligence
investigations that began before December 31, 2005, or any particular criminal
offenses or potential offenses which began or occurred before December 31, 2005.
As to those particular investigations or offenses, applicable provisions would
continue in effect. Sec. 2 added additional reporting requirements: the Attorney
General would have been required to report annually in April to the House Judiciary
Committee, House Permanent Select Committee on Intelligence, Senate Judiciary
Committee and Senate Select Committee on Intelligence on (1) the aggregate number
of non-U.S. persons targeted for FISA orders during the previous year, broken down
by electronic surveillance, physical searches, pen registers, or access to records under
50 U.S.C. § 1861; (2) the number of individual covered by an order issued under
FISA who were determined pursuant to activities authorized by FISA to have acted
wholly alone in activities covered by the order; (3) the number of times the Attorney
General authorized that information obtained under FISA or derivative information
may be used in a criminal proceeding; and, (4) in a manner consistent with protection
of U.S. national security, redacting the facts of any particular matter, the portions of
the documents and applications filed with the Foreign Intelligence Surveillance Court
(FISC) or the Foreign Intelligence Court of Review (Court of Review) that include
significant construction or interpretation of the provisions of FISA and the portions
of opinions or court orders from the FISC or Court of Review which include
significant construction or interpretation of FISA provisions.
H.R. 4591. Civil Liberties Restoration Act of 2004. Introduced June 16, 2004, by
Representative Howard Berman, and referred to the House Committee on the
Judiciary and the House Permanent Select Committee on Intelligence. Referred June
28, 2004, to the Subcommittee on Immigration, Border Security, and Claims and the
Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary
Committee. In the context of electronic surveillance or physical searches under
FISA, Sec. 401 of the bill would have amended FISA to permit, rather than require,
relevant U.S. district courts, upon filing by the Attorney General of an affidavit under
oath that disclosure or an adversary hearing would harm U.S. national security, to
review in camera and ex parte the application, order, and other pertinent materials
necessary to determine whether the surveillance or physical search was lawfully
authorized and conducted. In making this determination with respect to an electronic
surveillance, the court would have been required to disclose, if otherwise
discoverable, to the aggrieved person, his or her counsel, or both, under Classified
Information Procedures Act (CIPA) procedures and standards, portions of the
application, order, or other materials relating to the surveillance unless the court finds
the disclosure would not assist in determining any legal or factual issue pertinent to
the case. It would have applied a similar standard in the context of physical searches,
but would have given the court the option of requiring the Attorney General to
provide the aggrieved person, his or her counsel, or both, a summary of such
materials relating to the physical search. In the context of pen registers or trap and
trace devices, the bill would have required disclosure to the aggrieved person, his or
her attorney, or both, under CIPA procedures and standards, if otherwise
discoverable, of portions of the application, order, or other materials relating to the
use of the pen register or trap and trace device, or evidence or information obtained
or derived from the pen register or trap and trace device, unless such disclosure
would not assist in determining any legal or factual issue pertinent to the case. In the
context of 50 U.S.C. § 1861, any disclosure of applications, information, or items
submitted or acquired pursuant to a FISA order for production of tangible things, if
otherwise discoverable, would have had to be conducted under CIPA procedures and
standards. Sec. 403 of the bill would have required that applications for FISA orders
for production of books, records, papers, documents, or other tangible things under
50 U.S.C. § 1861, specify that there are specific and articulable facts giving reason
to believe that the person to whom the records pertain is a foreign power or agent of
a foreign power, and that the court, in issuing its order find that there are specific and
articulable facts giving reason to believe that the person to whom the records pertain
is a foreign power or an agent of a foreign power ant that the application meets the
other requirements of 50 U.S.C. § 1861. Sec. 403 of the bill also would have
amended 50 U.S.C. § 1862 to require the Attorney General, on a semi-annual basis,
to fully inform the House Permanent Select Committee on Intelligence, the House
Judiciary Committee, the Senate Select Committee on Intelligence and the Senate
Judiciary Committee concerning all requests for production of tangible things under
50 U.S.C. 1861. The Attorney General’s report to the House and Senate Judiciary
Committees would also have had to include the total number of applications made
under 50 U.S.C. § 1861, and the total number of such orders granted, modified or
denied.
H.Amdt. 652 to H.R. 4754. An amendment to add a new section to the Commerce-
Justice-State appropriations bill prohibiting funds from being made available to make
an application under Sec. 501 of FISA, 50 U.S.C. § 1861, for an order requiring
production of library circulation records, library patron lists, library internet records,
book sales records, or book customer lists. Introduced by Representative Sanders on
July 8, 2003. Amendment not agreed to by recorded vote 210-210, 1 present (Roll
no. 339).
S. 113. Official title as amended by the Senate: A bill to amend the Foreign
Intelligence Surveillance Act of 1978 to cover individuals, other than United States
persons, who engage in international terrorism without affiliation with an
international terrorist group. Introduced/originated in Senate on January 9, 2003, by
Senator Jon Kyl. Referred to Senate Judiciary Committee. On March 11, 2003,
reported out of the Senate Judiciary Committee by Senator Orrin Hatch with an
amendment in the nature of a substitute and an amendment to the title, without
written report Placed on Senate Legislative Calendar under General Orders, Calendar
No. 32. On April 29, 2003, Senate Judiciary Committee filed a written report,
S.Rept. 108-40; additional views filed. On May 8, 2003, Referred to Senate
Committee on Intelligence, pursuant to order of May 7, 2003; Senate Committee on
Intelligence discharged same day. On May 8, 2003, passed the Senate with an
amendment and an amendment to the title by Yea-Nay vote, 90-4 (Record Vote
Number 146). Received in House on May 9, 2003. Referred to the House Judiciary
Committee, and in addition to the House Permanent Select Committee on
Intelligence, for a period to be subsequently determined by the Speaker, in each case
for consideration of such provisions as fall within the jurisdiction of the committee
concerned. On June 25, 2003, referred to Subcommittee on Crime, Terrorism, and
Homeland Security. As passed the Senate and referred to the House, Sec. 1 of the
bill amended Section 101(b)(1) of FISA, 50 U.S.C. § 1801(b)(1) to include in the
definition of agent of a foreign power non-U.S. persons who engage in international
terrorism or activities in preparation for international terrorism. The new subsection
did not require that such persons be affiliated with an international terrorist group,
or foreign nation or group. It made the sunset provision in Sec. 224 of the USA
PATRIOT Act, P.L. 107-56 applicable to this amendment. Sec. 2 of the bill created
new annual reporting requirements under FISA to be made by the Attorney General
to the House Judiciary Committee, Senate Judiciary Committee, House Permanent
Select Committee on Intelligence and Senate Committee on Intelligence.
S. 123. A bill to exclude United States persons from the definition of “foreign
power” under the Foreign Intelligence Surveillance Act of 1978 relating to
international terrorism. Introduced by Senator Jon Kyl on January 9, 2003. Referred
to Senate Judiciary Committee. Related bill, S. 113. Sec. 1 of the bill would have
amended the definition of a “foreign power” under Section 101(a)(4), 50 U.S.C. §
1801(a)(4), to include a person, other than a U.S. person, or a group that engages in
international terrorism or activities in preparation therefor. Previously, this
subsection had only covered groups engaged in international terrorism or activities
in preparation for international terrorism.
S. 410. Foreign Intelligence Collection Improvement Act of 2003, including
Homeland Intelligence Agency Act of 2003 and Foreign Intelligence Surveillance
Public Reporting Act. A bill to establish the Homeland Intelligence Agency, and
for other purposes. Introduced by Senator John Edwards on February 13, 2003.
Referred to Senate Committee on Intelligence. Title III, Subtitle A, amended FISA
reporting requirements with respect to electronic surveillance and physical searches.
It also would have required reporting, within discretion of Attorney General or
Director of Homeland Intelligence and in a manner consistent with protection of U.S.
national security, of significant interpretations of FISA, including, as appropriate,
redacted portions of opinions or orders of FISA court. Title III, Subtitle B, of the
bill would have amended Title VI of FISA to address participation by an official or
agent of a proposed Homeland Intelligence Agency in religious and political groups
for foreign intelligence and international terrorism purposes. Subtitle III, Subtitle A,
of S. 410 also provided reporting requirements with respect to such undisclosed
participation.
S. 436. Domestic Surveillance Oversight Act of 2003. A bill to amend the Foreign
Intelligence Surveillance Act of 1978 to improve the administration and oversight of
foreign intelligence surveillance, and for other purposes. Introduced by Senator
Patrick Leahy on February 25, 2003. Referred to Senate Judiciary Committee.
Among other things, the bill authorized Foreign Intelligence Surveillance Court
(FISC) and Foreign Intelligence Court of Review (Court of Review) to establish rules
and procedures and to take actions necessary to administer FISA. It required
reporting of such rules and procedures and any modifications thereof to all of the
judges of the FISC and the Court of Review, the Chief Justice of the United States,
the House Judiciary Committee, the Senate Judiciary Committee, the House
Permanent Select Committee on Intelligence and the Senate Committee on
Intelligence. It also established certain public reporting requirements with respect to
electronic surveillance, physical searches, pen registers, and business records
production under FISA.
S. 578. Tribal Government Amendments to the Homeland Security Act of 2002. A
bill to amend the Homeland Security Act of 2002 to include Indian tribes among the
entities consulted with respect to activities carried out by the Secretary of Homeland
Security, and for other purposes. Introduced by Senator Daniel K. Inouye on March
7, 2003. Referred to Senate Governmental Affairs Committee. Hearings held before
the Senate Select Committee on Indian Affairs on July 30, 2003, S. Hrg. 108-312.
Sec. 12(g)(1) would have amended Section 106(k)(1) of FISA, 50 U.S.C. §
1806(k)(1), to permit federal officers who conduct electronic surveillance to acquire
foreign intelligence information under FISA to consult, among others, with law
enforcement personnel of an Indian tribe. Sec. 12(g)(2) would also have amended
Section 305(k)(1) of FISA, 50 U.S.C. § 1825(k)(1), to permit federal officers who
conduct a physical search under FISA to consult, among others, with law
enforcement personnel of an Indian Tribe.
S. 1158. Library and Bookseller Protection Act. A bill to exempt bookstores and
libraries from orders requiring the production of tangible things for foreign
intelligence investigations, and to exempt libraries from counterintelligence access
to certain records, ensuring that libraries and bookstores are subjected to the regular
system of court ordered warrants. Introduced by Senator Barbara Boxer on May 23,
2003. Referred to Senate Judiciary Committee. Sec. 2 of the bill would have
amended Section 501 of FISA, 50 U.S.C. § 1861, to preclude an application for an
order seeking or having the effect of searching for or seizing records of a bookseller
or library documentary materials concerning personally identifiable information
regarding a patron of the library or bookstore. It did not preclude a physical search
for such documentary materials under another provision of law.
S. 1507. Library, Bookseller, and Personal Records Privacy Act. Introduced July 31,
Sec. 2 of the bill would have required that applications for FISA orders for
production of books, records, papers, documents, or other tangible things under 50
U.S.C. § 1861, specify that there are specific and articulable facts giving reason to
believe that the person to whom the records pertain is a foreign power or agent of a
foreign power, and that the court, in issuing its order, find that there are specific and
articulable facts giving reason to believe that the person to whom the records pertain
is a foreign power or an agent of a foreign power ant that the application meets the
other requirements of 50 U.S.C. § 1861. Sec. 2 of the bill also amended 50 U.S.C.
§ 1862 to require the Attorney General, on a semi-annual basis, to fully inform the
House Permanent Select Committee on Intelligence, the House Judiciary Committee,
the Senate Select Committee on Intelligence and the Senate Judiciary Committee
concerning all requests for production of tangible things under 50 U.S.C. 1861. The
Attorney General’s report to the House and Senate Judiciary Committees would also
have included the total number of applications made under 50 U.S.C. § 1861, and the
total number of such orders granted, modified or denied.
S. 1552. Protecting the Rights of Individuals Act. A bill to amend title 18, United
States Code, and the Foreign Intelligence Surveillance Act of 1978 to strengthen
protections of civil liberties in the exercise of the foreign intelligence surveillance
authorities under Federal law, and for other purposes. Introduced by Senator Lisa
Murkowski on July 31, 2003. Referred to Senate Judiciary Committee. Among
other things, Sec. 4 of the bill amended Section 501 of FISA, 50 U.S.C. § 1861, the
business records provision, to add as an additional requirement for an application for
a court order that it “include a statement of the facts and circumstances relied upon
by the applicant to justify the applicant’s belief that the person to whom the records
pertain is a foreign power or an agent of a foreign power.” It also provided that a
judge enter an ex parte order as requested or modified approving the release of
records if the judge finds reason to believe that the person to whom the records
pertain is a foreign power or an agent of a foreign power; or, in the case of medical
records, library records, other records involving purchase or rental of books, video,
or music, or accessing of legal and publicly available information through the
internet, if the judge finds that there is probable cause that the person to whom the
records pertain is a foreign power or an agent of a foreign power. The application
would also have had to meet other requirements of the section. Sec. 5 of the bill
amended Section 105(c) of FISA, 50 U.S.C. § 1805(c), to eliminate John Doe roving
wiretaps under FISA. Sec. 8 of the bill established certain public reporting
requirements under FISA.
S. 1709. Security and Freedom Ensured Act of 2003 or the SAFE Act. Introduced
October 2, 2003, by Senator Larry Craig, and referred to Senate Judiciary Committee.
Sec. 2 of the bill would have amended the roving wiretap provisions of FISA to
require that an order approving such electronic surveillance specify either the identity
of the target or the places and facilities to which the electronic surveillance is to be
directed. In cases where the facility or place is not known at the time of the issuance
of the order, Sec. 2 of the bill would have required that the electronic surveillance
only be conducted when the person conducting the surveillance has ascertained that
the target is present at a particular facility or place. Sec. 4 of the bill would have
required that applications for FISA orders for production of books, records, papers,
documents, or other tangible things under 50 U.S.C. § 1861, specify that there are
specific and articulable facts giving reason to believe that the person to whom the
records pertain is a foreign power or agent of a foreign power, and that the court, in
issuing its order, find that there are specific and articulable facts giving reason to
believe that the person to whom the records pertain is a foreign power or an agent of
a foreign power ant that the application meets the other requirements of 50 U.S.C.
§ 1861. Sec. 4 of the bill also amended 50 U.S.C. § 1862 to require the Attorney
General, on a semiannual basis, to fully inform the House Permanent Select
Committee on Intelligence, the House Judiciary Committee, the Senate Select
Committee on Intelligence and the Senate Judiciary Committee concerning all
requests for production of tangible things under 50 U.S.C. 1861.
S. 2528. Civil Liberties Restoration Act of 2004. Introduced June 16, 2004, by
Senator Edward Kennedy, and referred to the Senate Judiciary Committee. In the
context of electronic surveillance or physical searches under FISA, Sec. 401 of the
bill would have amended FISA to permit, rather than require, relevant U.S. district
courts, upon filing by the Attorney General of an affidavit under oath that disclosure
or an adversary hearing would harm U.S. national security, to review in camera and
ex parte the application, order, and other pertinent materials necessary to determine
whether the surveillance or physical search was lawfully authorized and conducted.
In making this determination with respect to an electronic surveillance, the court
would have been required to disclose, if otherwise discoverable, to the aggrieved
person, his or her counsel, or both, under Classified Information Procedures Act
(CIPA) procedures and standards, portions of the application, order, or other
materials relating to the surveillance unless the court finds the disclosure would not
assist in determining any legal or factual issue pertinent to the case. The bill applied
a similar standard in the context of physical searches, but gave the court the option
of requiring the Attorney General to provide the aggrieved person, his or her counsel,
or both, a summary of such materials relating to the physical search. In the context
of pen registers or trap and trace devices, the bill would have required disclosure to
the aggrieved person, his or her attorney, or both, under CIPA procedures and
standards, if otherwise discoverable, of portions of the application, order, or other
materials relating to the use of the pen register or trap and trace device, or evidence
or information obtained or derived from the pen register or trap and trace device,
unless such disclosure would not assist in determining any legal or factual issue
pertinent to the case. In the context of 50 U.S.C. § 1861, any disclosure of
applications, information, or items submitted or acquired pursuant to a FISA order
for production of tangible things, if otherwise discoverable, would have had to be
conducted under CIPA procedures and standards.
S.Amdt. 536 to S. 113. To establish additional annual reporting requirements on
activities under FISA. Introduced May 8, 2003, by Senator Feingold. Agreed to the
same day by Unanimous Consent. Under the amendment, the Attorney General was
to report annually in April to the House Judiciary Committee, House Permanent
Select Committee on Intelligence, Senate Judiciary Committee and Senate Select
Committee on Intelligence on (1) the aggregate number of non-U.S. persons targeted
for FISA orders during the previous year, broken down by electronic surveillance,
physical searches, pen registers, or access to records under 50 U.S.C. § 1861; (2) the
number of individual covered by an order issued under FISA who were determined
pursuant to activities authorized by FISA to have acted wholly alone n activities
covered by the order; (3) the number of times the Attorney General authorized that
information obtained under FISA or derivative information may be used in a criminal
proceeding; and, (4) in a manner consistent with protection of U.S. national security,
redacting the facts of any particular matter, the portions of the documents and
applications filed with the Foreign Intelligence Surveillance Court (FISC) or the
Foreign Intelligence Court of Review (Court of Review) that include significant
construction or interpretation of the provisions of FISA and the portions of opinions
or court orders from the FISC or Court of Review which include significant
construction or interpretation of FISA provisions.