The Foreign Intelligence Surveillance Act: Comparison of the Senate Amendment to H.R. 3773 and the House Amendment to the Senate Amendment to H.R. 3773
The Foreign Intelligence Surveillance Act:
Comparison of the Senate Amendment to
H.R. 3773 and the House Amendment to
the Senate Amendment to H.R. 3773
June 12, 2008
Elizabeth B. Bazan
Legislative Attorney
American Law Division
The Foreign Intelligence Surveillance Act:
Comparison of the Senate Amendment to
H.R. 3773 and the House Amendment to
the Senate Amendment to H.R. 3773
Summary
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, (FISA) 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. In his view, there were two critically needed changes: that a
court order should not be required for gathering foreign intelligence from foreign
targets located overseas; and that liability protection was needed for those who
furnished aid to the government in carrying out its foreign intelligence collection
efforts.
Both the House and the Senate have taken action on proposals to address these
concerns, but the measures differ somewhat in content and approach. On November
15, 2007, the U.S. House of Representatives passed H.R. 3773, the RESTORE Act
of 2007. On February 12, 2008, the Senate passed S. 2248, as amended, then struck
all but the enacting clause of H.R. 3773, and inserted the text of S. 2248, as amended,
in its stead. On March 14, 2008, the House passed an amendment to the Senate
amendment to H.R. 3773. Both the House amendment and the Senate amendment
include significant changes to FISA, including provisions on the acquisition of
communications of non-U.S. persons and of U.S. persons abroad. The two bills take
different approaches to some issues that have played a significant role in the ongoing
debate. For example, the Senate amendment would provide retroactive immunity for
electronic communications service providers who assisted the government in
intelligence activities between September 11, 2001 and January 17, 2007. The House
amendment would provide for presentation to a court, with certain safeguards, of
evidence and arguments with respect to which state secrets privilege has been
asserted in covered civil actions against such electronic communications service
providers and other persons who furnished such aid to the government. The House
bill also provides for an audit of the Terrorist Surveillance Program and any other
wireless electronic surveillance programs, with reporting requirements, while the
Senate bill does not. This report provides an overview, a review of legislative
activity, and a detailed side-by-side comparison of the provisions of these two bills.
Contents
In troduction ......................................................1
Legislative Activity................................................2
Summary of Selected Portions of the Senate Amendment to H.R. 3773
and the House Amendment to the Senate Amendment.................4
Limitation on Definition of Electronic Surveillance...................8
Definitions ...................................................8
Targeting of Persons Other Than U.S. Persons Reasonably Believed
to be Outside the United States to Acquire
Foreign Intelligence Information..............................9
Adoption of Targeting Procedures, Minimization Procedures,
Certifications, and Guidelines...............................10
Exception to certification requirement where
immediate government action required....................13
Directives and Judicial Review of Directives.......................15
Judicial Review of Certifications, Targeting Procedures and
Minimization Procedures...................................19
Continuation of acquisition pending rehearing or appeal..........22
Judicial Proceedings...........................................24
Replacement and Reauthorization of Authorizations in Effect;
Schedule ................................................24
Assessments and Reviews......................................26
Acquisitions Inside the United States Targeted at U.S. Persons
Located Outside the United States............................28
Other Acquisitions Targeting United States Persons
Outside the United States...................................34
Use of Information Acquired under New Title VII of FISA............42
Congressional Oversight.......................................42
Savings Provision.............................................44
Technical and Conforming Amendments to 18 U.S.C. §§ 2232
and 2511................................................44
Technical and Conforming Amendments to FISA....................45
Termination of Authority for New Title VII of FISA, Applicable
Changes to the FISA Table of Contents, and Certain
Technical and Conforming Amendments......................46
Statement of Exclusive Means by which Electronic Surveillance
and Interception of Domestic Communications
May Be Conducted........................................47
Submittal to Congress of Certain Court Orders under FISA............49
Amendments to Section 104 of FISA Regarding Applications
for FISC Orders..........................................51
Amendments to Section 105 of FISA Regarding Issuance
of an Order Authorizing Electronic Surveillance................53
Amendment to Section 106 of FISA Regarding Use of Information
Gathered Under a Section 105 FISC Order.....................57
Regarding Physical Searches................................57
Conforming Amendments to Title III of FISA......................61
Amendments to Title IV of FISA for Emergency Pen Registers
and Trap and Trace Devices.................................62
Amendments Regarding the FISC................................63
Inspector General Review of Previous Actions......................64
Weapons of Mass Destruction...................................67
Technical and Conforming Amendments to Section 103 of FISA.......70
Statute of Limitations..........................................70
Protections for Electronic Communication Service Providers..........70
Protection of Persons Assisting the Government.....................74
Commission on Warrantless Electronic Surveillance Activities.........80
Severability, Effective Date, Repeal of Protect America Act
Provisions, and Transition Procedures.........................86
Reporting requirements with respect to the PAA and
section 601of FISA, as amended.............................93
Applicability of Provisions on Challenge of Directives,
Protection from Liability, and Use of Information...............94
No Rights Under the FISA Amendments Act of 2008 for
Undocumented Aliens.....................................97
Surveillance to Protect the United States...........................97
Glossary of FISA Terms from 50 U.S.C. § 1801.........................98
List of Tables
Table 1. Comparison of the Senate Amendment to H.R. 3773
and the House Amendment to the Senate Amendment
to H.R. 3773..................................................8
The Foreign Intelligence Surveillance Act:
Comparison of the Senate Amendment to
H.R. 3773 and the House Amendment to
the Senate Amendment to H.R. 3773
Introduction
Recent media reports suggest possible movement in the negotiations on1
legislation to amend the Foreign Intelligence Surveillance Act (FISA). These
negotiations are the most recent development in a wide range of legislative andth
oversight activity in the 110 Congress regarding FISA.
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,
“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
1 See, e.g., Chris Strohm, “House Chairman Open To Republican Compromise On FISA,”
CongressDailyAM (June 4, 2008); Tim Starks, “Lobbyists Duel Over Rewrite of
Surveillance Law,” CQ Today (June 2, 2008); Ashley Roque, “After Months of Gridlock,
Senate and House Negotiations on FISA Continue,” CongressNow (June 2, 2008); Chris
Strohm and Christian Bourge, “Key Republicans Offer Concessions To Kick-Start FISA
Bill,” CongressDailyAM (May 23, 2008); Chris Strohm and Christian Bourge, “Rockefeller
Floats Proposal To Break Impasse Over FISA,” CongressDailyAM (May. 8, 2008).
2 Statement by Director of National Intelligence, Subject: Modernization of the Foreign
Intelligence Surveillance Act (FISA) (August 2, 2007), which may be found at
[http://www.odni.gov/press_re leases/20070802_release.pdf].
protection was needed for those who furnished aid to the government in carrying out
its foreign intelligence collection efforts.
Legislative Activity
On August 5, 2007, the Protect America Act of 2007 (PAA), 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. On January 28, 2008, 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) fell short3
of the required votes. 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 proposed legislation to amend FISA, while ensuring that the
intelligence community would have the authority it needed in the intervening period.
It became which became P.L. 110-182. On February 13, 2008, the House rejected
H.R. 5349, which would have extended the sunset provision for an additional 21
days. Bills have been introduced in the Senate to extend the sunset from 180 to 210
days (S. 2541, S. 2556, and S. 2615), or to extend it to July 1, 2009 (S. 2557). The
Protect America Act sunseted on February 16, 2008. Under transitional provisions
in Section 6 of P.L. 110-55, acquisitions authorized while the PAA was in force and
related directives would remain in effect until their expiration dates. Under the terms
of the PAA, such acquisitions could be authorized for up to one year.
The House and the Senate each have passed bills to provide a longer-term
statutory approach to these concerns. H.R. 3773, the Responsible Electronic
Surveillance That is Overseen, Reviewed, and Effective Act of 2007 or the
RESTORE Act of 2007, was introduced in the House of Representatives on October
9, 2007, and was referred to the House Judiciary Committee and the House
Permanent Select Committee on Intelligence. The bill was reported out of the House
Judiciary Committee, as amended, on October 12, 2007, H.Rept. 110-373, Part 1.
The same day, the measure was reported out of the House Permanent Select
Committee on Intelligence, as amended, H.Rept. 110-373, Part 2. On October 16,
385, providing for consideration of an amendment in the nature of a substitute, as
modified, to H.R. 3773, in lieu of the amended versions of H.R. 3773 reported out
of the House Judiciary Committee and the House Permanent Select Committee on
Intelligence. The resolution was agreed to on October 17, 2007. On November 15,
On October 26, 2007, S. 2248, the Foreign Intelligence Surveillance Act of 1978
Amendments Act of 2007 or the FISA Amendment Act of 2007, an original bill, was
reported out of the Senate Select Committee on Intelligence by Senator Rockefeller,
S.Rept. 110-209. 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, without a written report. The written report was filed on January 22, 2008,
3 Record Vote Number 4, 48-45.
S.Rept. 110-258. 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 76-10.4 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. On
January 24, 2008, a modified version of the Senate Judiciary Committee’s
amendment in the nature of a substitute to S. 2248 was tabled by a vote of 60-36.5
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, the Foreign Intelligence Surveillance Act of 1978 Amendments Act
of 2008 or the FISA Amendments Act of 2008). On January 28, 2008, a cloture
motion by Senator McConnell on this amendment failed to pass.6 A number of other
amendments to S.Amdt. 3911 to S. 2248 were proposed and considered between
January 24 and February 12, 2008.7
On February 12th, pursuant to an agreement and order of January 31, 2008,
S.Amdt 3911 to S. 2248, as amended, was agreed to, and the bill was read for the
third time. The Senate then agreed to a cloture motion on S. 2248. After debate, the
Senate passed S. 2248, as amended, by a vote of 68-29.8 Pursuant to the previous
order, H.R. 3773 was taken up, all but the enacting clause was stricken and the text
of S. 2248, as amended, was inserted in lieu thereof. The bill was advanced to the
third reading, passed, and the motion to reconsider was laid upon the table. Passage
of S. 2248 was then vitiated and the bill was returned to the calendar. A message on
the Senate action was sent to the House the following day.
On March 12, 2008, the House Rules Committee reported H.Res. 1041 to the
House. The resolution passed the House two days later. Pursuant to the resolution,
4 Record Vote Number 435.
5 Record Vote Number 2.
6 Record Vote Number 3, 48-45.
7 For example, pursuant to an agreement and order of January 31, 2008, S.Amdt. 3909, as
modified; S.Amdt. 3932, as modified; S.Amdt. 3960, as modified; and S.Amdt. 3945 were
agreed to, while other amendments were scheduled for floor debate. S.Amdt. 3930 fell short
of the requisite 60 votes and was withdrawn on February 6, 2008, Record Vote Number 7.
S.Amdt. 3941 was agreed to, while S.Amdt. 3913 and S.Amdt. 3915 failed to pass on
February 7, 2008. S.Amdt. 3941 was agreed to by voice vote, while S.Amdt. 3915 was
rejected by a vote of 40-56, Record Vote Number 11, and S.Amdt. 3913 was rejected by a
vote of 38-57, Record Vote 12. On February 12, 2008, S.Amdt 3910, S.Amdt. 3979,
S.Amdt. 3907, S.Amdt. 3912, S.Amdt. 3927, and S.Amdt. 3919 were rejected. Record Vote
Number 13, 57-41; Record Vote Number 14, 35-63; Record Vote Number 15, 31-67;
Record Vote 16, 37-60; Record Vote Number 17, 30-68; and Record Vote Number 18,
8 Record Vote Number 20.
the House considered and agreed to a House amendment to the Senate amendment
to H.R. 3773, also entitled the Foreign Intelligence Surveillance Act of 1978
Amendments Act of 2008 or the FISA Amendments Act of 2008, by a vote of 213-
197, with one voting present (Roll no. 145). The House and Senate have not gone to
conference on FISA legislation. Instead, negotiations are ongoing to find a means of
resolving their differences.
Summary of Selected Portions of the
Senate Amendment to H.R. 3773 and the
House Amendment to the Senate Amendment
Both the Senate amendment to H.R. 3773 and the House amendment to the
Senate amendment to H.R. 3773 include amendments to the Foreign Intelligence
Surveillance Act. The House amendment differs in a number of ways from the
Senate-passed version of the bill. For example, the Senate amendment to H.R. 3773
provides, in new section 701 of FISA, that nothing in the definition of “electronic
surveillance” under subsection 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. The House has no parallel provision
in its bill.
The two bills differ in their treatment of the role of the Foreign Intelligence
Surveillance Court (FISC) with respect to procedures for acquisitions for the purpose
of gathering foreign intelligence information of the contents of communications of
U.S. persons and non-U.S. persons located outside the United States.
In the absence of an emergency authorization, the House amendment requires
prior approval by the FISC of the applicable targeting procedures, minimization
procedures, and certification before the Attorney General and the Director of
National Intelligence (DNI) may authorize acquisition of the contents of
communications of non-U.S. persons reasonably believed to be located outside the
United States. The FISC would have 30 days after a certification is submitted to
review the certification and the targeting and minimization procedures and to approve
or deny an order regarding such an acquisition. The House bill also requires the
Attorney General, in consultation with the DNI, to adopt guidelines to ensure
compliance with limitations imposed by the bill on such acquisitions and to ensure
that an application is filed under section 104 or 303 of FISA, if required by that act.
The guidelines are to be submitted to the FISC, the congressional intelligence
committees, and the House and Senate Judiciary Committees.
Under the House bill, if the FISC finds that the certification satisfies statutory
requirements and targeting and minimization procedures are consistent with statutory
standards and constitutional requirements under the Fourth Amendment, the FISC
is to approve the certification and use of the procedures for the acquisition. In a non-
emergency situation, if the FISC finds that a certification or applicable procedures
fall short of these requirements, the court would deny the order, identify any
deficiency in the certification or the procedures, and provide the government with an
opportunity to correct such deficiency. If the Attorney General and the DNI
determine that an emergency situation exists, that immediate action by the
Government is required, and that time does not permit the completion of judicial
review prior to the initiation of an acquisition, they may authorize the acquisition and
submit a certification to the FISC as soon as possible but in no event more than seven
days after the determination is made. In the context of an emergency authorization,
the FISC would enter an order directing the government, at the government’s election
and to the extent required by the FISC’s order, to correct any deficiency within 30
days or cease the acquisition.
In contrast, the Senate bill does not require prior approval by the FISC of
applicable certifications, targeting procedures and minimization procedures in
connection with the acquisition of communications of non-U.S. persons abroad, nor
does it require adoption and submission of compliance guidelines. Rather, the Senate
bill requires submission of a certification or a targeting or minimization procedure,
or an amendment thereto, to the FISC within five days of making or amending the
certification or adopting or amending the procedure. Where the Attorney General
and the DNI determine that immediate action is required and time does not permit
preparation of a certification prior to initiation of an acquisition, the Senate bill
requires the Attorney General and the DNI to prepare the certification, including such
determination, within seven days after the determination is made. If the FISC finds
that a certification meets statutory requirements and targeting and minimization
procedures are consistent with statutory requirements and meet constitutional
standards under the Fourth Amendment, the FISC would enter an order approving
continued use of the procedures involved. If the court finds that the required
standards are not met, then the FISC would enter an order directing the government,
at the government’s election and to the extent required by the FISC order, to correct
any deficiencies within 30 days or cease the acquisition.
The House provides that nothing in its bill is to be construed to require an
application under section 104 of FISA for an acquisition that is targeted in
accordance with new section 703 of FISA at a non-U.S. person reasonably believed
to be located outside the United States. The Senate bill has no similar language.
Both bills provide for targeting of U.S. persons reasonably believed to be
located outside the United States for up to 90 days pursuant to a FISC order if
statutory criteria are met. Such an order could be renewed for additional 90 day
periods upon submission of renewal applications meeting the same standards. In the
case of an emergency authorization by the Attorney General of an acquisition, each
bill requires notice to a FISC judge by the Attorney General or his designee at the
time the decision is made to conduct such an acquisition and requires the filing of an
application for a FISC order within seven days of the Attorney General’s
authorization of the emergency acquisition. Applicable minimization procedures
would apply to such an acquisition. In the absence of a judicial order approving an
acquisition originally authorized by the Attorney General on an emergency basis, the
acquisition would terminate when the information sought is obtained, when an
application for the order is denied, or when seven days have elapsed, whichever is
earliest. Without a FISC order, no information acquired or evidence derived from an
emergency acquisition, except under circumstances where the target of the
acquisition is determined not to be a U.S. person, may be received in evidence or
disclosed in federal, state, or local proceedings; nor could any information
concerning a U.S. person acquired from such acquisition subsequently be used or
disclosed in any other manner by federal officers or employees without the consent
of such person, except with the approval of the Attorney General if the information
indicates a threat of death or serious bodily harm to any person.
The House and Senate bills differ as to how they craft language emphasizing the
exclusivity of FISA as a means of engaging in electronic surveillance to gather
foreign intelligence information. The House amendment would add a new section
to FISA, providing that “the procedures of chapters 119, 121, and 206 of title 18,
United States Code,9 and [FISA] shall be the exclusive means by which electronic
surveillance and the interception of domestic wire, oral, or electronic
communications may be conducted,” except for “an express statutory authorization
for electronic surveillance or the interception of domestic wire, oral, or electronic
communications, other than as an amendment to this Act or chapters 119, 121, or 206
of title 18, United States Code.” The Senate amendment to H.R. 3773 would add a
new section FISA, providing that “[t]he procedures of chapters 119, 121, and 206 of
title 18, United States Code, and [FISA] shall be the exclusive means by which
electronic surveillance (as defined in section 101(f), regardless of the limitation of
section 701) and the interception of domestic wire, oral, or electronic
communications may be conducted.”10
Both bills would expand the definition of “foreign power” and “agent of a
foreign power” under FISA to address groups or individuals, other than U.S. persons,
that engage in international proliferation of weapons of mass destruction or activities
in preparation therefor, although the House and Senate definitions of these terms
differ somewhat. Both bills would also permit federal officers who engage in
electronic surveillance or physical searches to obtain foreign intelligence information
to consult with federal, state, or local law enforcement personnel to coordinate to
investigate against international proliferation of weapons of mass destruction.
While both the House and the Senate provide prospective limitations of liability
for those who furnish aid to the government in connection with acquisitions
authorized under their respective bills, they differ in their treatment of electronic
communication service providers who assisted the government with warrantless
electronic surveillance for foreign intelligence purposes between September 11, 2001
and January 17, 2007. Title II of the Senate’s version includes retroactive immunity
for electronic communication service providers who may have furnished aid to the
government from September 11, 2001, through January 17, 2007, if certain criteria
are satisfied.11 The House measure does not afford retroactive immunity to electronic
9 Chapter 119, 18 U.S.C. §§ 2510 et seq., deals with interception of wire, oral and electronic
communications; chapter 121, 18 U.S.C. §§ 2701 et seq., addresses stored wire and
electronic communications and transactional records access; and chapter 206, 18 U.S.C. §§
10 Media accounts also suggest that the exclusivity language is a focus of interest for those
seeking to negotiate language that is acceptable to both the House and the Senate. Id.
11 The Senate rejected proposals to permit substitution of the United States as a party
(continued...)
communications service providers who may have furnished aid to the government in
connection with the Terrorist Surveillance Program or other intelligence activities in
the wake of the terrorist attacks of September 11, 2001.12
Title II of the House amendment provides a procedure by which a court, while
taking steps to protect classified information, could examine submissions, arguments
and information with respect to which state secrets privilege has been asserted in
covered civil actions against such electronic communications service providers and
other persons who may have furnished such aid to the government. The Senate
amendment contains no parallel language.
In addition, the House amendment provides for an audit by the Inspector
General of the Department of Justice of the Terrorist Surveillance Program and any
similar programs. Within 30 days of completion of the audit, the bill would require
that the report be submitted to the House and Senate intelligence committees and the
House and Senate judiciary committees, along with any underlying documentation.
The Senate bill has no similar provision. The House bill would also establish a
Commission on Warrantless Electronic Surveillance within the legislative branch.
No parallel provision exists in the Senate Amendment to H.R. 3773. The House bill
provides additional manpower and training to facilitate submission to and disposition
of applications to the FISC. The Senate amendment to H.R. 3773 does not address
this issue.
In the following table, this report provides a detailed side-by-side comparison
of the provisions of these two measures, using H.R. 3773 as passed by the Senate 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.
11 (...continued)
defendant in pending law suits against such telecommunications carriers. See, e.g., S. 2402,
S.Amdt. 3927.
12 Immunity for the telecommunication service providers who furnished aid to the
government in connection with a warrantless electronic surveillance program after 9/11 has
been a point of contention in the FISA debate. In the House bill’s judicial alternative to an
immunity grant, the court involved would seem to be a U.S. district court. A recent news
report indicates that the negotiators may be considering a proposal to place this authority in
the FISC instead of in a U.S. district court. See, Chris Strohm, “House Chairman Open To
Republican Compromise On FISA,” CongressDailyAM (June 4, 2008).
CRS-8
Table 1. Comparison of the Senate Amendment to
H.R. 3773 and the House Amendment to the Senate Amendment to H.R. 3773
H.R. 3773 — House Amendment to the Senate Amendment
itle — “Foreign Intelligence Surveillance Act of 1978 Amendments ActShort Title — “Foreign Intelligence Surveillance Act of 1978 Amendments Act
SA Amendments Act of 2008”of 2008” or the “FISA Amendments Act of 2008”
mitation on Definition of Electronic Surveillance
trikes the existing title VII of FISA and replacesSimilar provision. Subsection 101(a) of the bill.
iki/CRS-RL34533ith a new title VII.
g/w
s.ormitation on Definition of Electronic Surveillance: Under new section 701No similar provision.
leak title VII of FISA, nothing in the definition of “electronic surveillance”
ubsection 101(f) of FISA, 50 U.S.C. § 1801(f), shall be construed to
://wikipass surveillance that is targeted in accordance with proposed title VII of
httporeign Intelligence Surveillance Act (FISA) at a person reasonably believed
nited States. Subsection 101(a)(2) of the bill.
initions
section 702 of FISA: Definitions. See also new section 801 of FISA onNew section 701 of FISA: Definitions. Uses existing definitions from section
initions. Uses existing definitions from section 101 of FISA of the terms101 of FISA of the terms “agent of a foreign power”, “Attorney General”,
ent of a foreign power”, “Attorney General”, “contents”, “electronic“contents”, “electronic surveillance”, “foreign intelligence information”,
eillance”, “foreign intelligence information”, “foreign power”,“foreign power”, “minimization procedures”, “person”, “United States”, and
inimization procedures”, “person”, “United States”, and “United States“United States person”, except as specifically provided in the new title VIII of
except as specifically provided in the new title VII of FISA. ProvidesFISA. Provides new definitions of “congressional intelligence committees”,
ressional intelligence committees”, “Foreign“Foreign Intelligence Surveillance Court” and “Court”, “Foreign Intelligence
CRS-9
H.R. 3773 — House Amendment to the Senate Amendment
telligence Surveillance Court” and “Court”, “Foreign Intelligence SurveillanceSurveillance Court of Review” and “Court of Review”, “electronic
urt of Review” and “Court of Review”, “electronic communication servicecommunication service provider”, and “intelligence community”.
ider”, and “element of the intelligence community”.
rgeting of Persons Other Than U.S. Persons Reasonably Believed to be Outside the United States to Acquire Foreign Intelligence
formation
bsection 101(a)(2) of the bill, new section 703 of FISA: Permits AttorneySubsection 101(a)(2) of the bill, new section 702 of FISA: Permits the AG and
neral (AG) and the Director of National Intelligence (DNI) to jointlyDNI, pursuant to a FISC order approving the AG/DNI certification, applicable
e, for up to 1 year, targeting of persons reasonably believed to be outsidetargeting procedures and minimization procedures under new subsection
iki/CRS-RL34533ited States other than U.S. persons to acquire foreign intelligence information702(i)(3) or an emergency determination under subsection 702(g)(1)(B), to
g/wlossary for definition of Attorney General, subsection 101(g) of FISA, andjointly authorize for up to 1 year targeting of non-U.S. persons reasonably
s.ornited States person, subsection 101(i) of FISA). Such an acquisition:believed to be located outside the United States to acquire foreign intelligence
leakinformation. [Emphasis added.] Such an acquisition:
://wikimay not intentionally target any person known at the time of the acquisition — may not intentionally target any person known at the time of acquisition to
httpnited Statesbe located in the United States;
ay not intentionally target a person reasonably believed to be located — may not intentionally target a person reasonably believed to be located
the United States if the purpose of the acquisition is to target a particular,outside the United States in order to target a particular, known person reasonably
believed to be in the United States, except inbelieved to be in the United States;
ith title I (dealing with electronic surveillance) or title III (dealing
isters and trap and trace devices) of FISA.
ay not intentionally target a U.S. person reasonably believed to be located — may not intentionally target a U.S. person reasonably believed to be located
.S., except in accordance with new sections 704, 705, or 706 ofoutside the United States;
SA;
CRS-10
H.R. 3773 — House Amendment to the Senate Amendment
acquire any communication as to which the sender and — may not intentionally acquire any communication as to which the sender and
nown at the time of the acquisition to be located inall intended recipients are known at the time of the acquisition to be located in
.S.the United States; and
ust be conducted in a manner consistent with the fourth amendment to the — shall be conducted in a manner consistent with the fourth amendment to the
S. Constitution. New subsection 703(a), (b).Constitution of the United States. New subsection 702(a), (b).
of acquisition: Such an acquisition may be conducted only inConduct of acquisition: Such an acquisition may only be conducted in
ith an AG/DNI certification; targeting procedures; andaccordance with an AG/DNI certification under new subsection 702(g) or an
iki/CRS-RL34533inimization procedures. New subsection 703(c).emergency determination under new subsection 702(g)(1)(B), targeting
g/wprocedures, minimization procedures, and guidelines for compliance with the
s.orabove limitations and with requirements for filing an application under section
leak104 for electronic surveillance or 303 for physical searches where required. New
subsections 702(c), (f).
://wiki
httpion of Targeting Procedures, Minimization Procedures, Certifications, and Guidelines
option of targeting procedures: Under new subsection 703(d), the AG, inSimilar provision, new subsection 702(d).
, shall adopt targeting procedures that are reasonably
ned to ensure that any acquisition authorized under subsection 703(a) is
ited to targeting persons reasonably believed to be located outside the United
ates and does not result in the intentional acquisition of any communication as
e sender and all intended recipients are known at the time of the
option of minimization procedures: Under new subsection 703(e), the AG,Similar provision, new subsection 702(e).
, shall adopt minimization procedures that meed the
CRS-11
H.R. 3773 — House Amendment to the Senate Amendment
inimization procedures under subsection 101(h) or subsection
SA for acquisitions authorized under new subsection 703(a).
quirements for AG/DNI certification as prerequisite to an acquisition,Requirements for AG/DNI certification, new subsection 702(g): Subject to
subsection 703(f) of FISA: Subject to subparagraph (B), before initiationsubparagraph (B), if the AG and the DNI seek to authorize an acquisition under
G and the DNI shall provide, under oath, a writtenthis section, the AG and the DNI shall provide, under oath, a written
that: certification, attesting that:
procedures in place for determining that the acquisition — there are reasonable procedures in place for determining that the acquisition
iki/CRS-RL34533ed is targeted at persons reasonably believed to be located outside theited States and that such procedures have been approved by, or will beauthorized is targeted at persons reasonably believed to be located outside theUnited States and such procedures have been submitted to the FISC; and
g/witted within 5 days for approval by, the FISC;
s.or
leak
reasonable procedures in place for determining that the acquisition — there are reasonable procedures in place for determining that the acquisition
://wikied under subsection 703(a) does not result in the intentional acquisitiondoes not result in the intentional acquisition of any communication as to which
http communication as to which the sender and all intended recipients arethe sender and all intended recipients are known at the time of the acquisition to
at the time of the acquisition to be located in the United States, and thatbe located in the United States, and such procedures have been submitted to the
e been approved by, or will be submitted within 5 days forFISC;
al by, the FISC;
ilar provision. — guidelines have been adopted in accordance with subsection (f) to ensure
compliance with the limitations in subsection (b) and to ensure that applications
are filed under section 104 or section 303, if required by this Act;
the requirements of the fourth amendment — the targeting procedures, minimization procedures, and guidelines referred
.S. Constitution and do not permit the intentional targeting of any personto in clauses 702(g)(2)(A)(i), (ii), and (iii) are consistent with the requirements
nown at the time of acquisition to be located in the United States or theof the fourth amendment to the Constitution of the United States;
CRS-12
H.R. 3773 — House Amendment to the Senate Amendment
communication as to which the sender and all
known at the time of the acquisition to be located in the
ited States;
nificant purpose of the acquisition is to obtain foreign intelligence — a significant purpose of the acquisition is to obtain foreign intelligence
ation; information;
inimization procedures to be used with — the minimization procedures to be used with respect to such acquisition meet
eet the definition of minimization procedures underthe definition of minimization procedures under section 101(h) or section 301(4)
iki/CRS-RL34533inimization procedures in connection with FISA electronicin accordance with new subsection 702(e) and have been submitted to the FISC;
g/weillance) or 301(4) (minimization procedures in connection with FISA
s.orsical searches) of FISA; and have been approved by, or will be submitted
leaks for approval by, the FISC pursuant to new subsection 703(h)(4).
://wikiinvolves obtaining the foreign intelligence information from — the acquisition involves obtaining the foreign intelligence information from
httpith the assistance of an electronic communication service provider;or with the assistance of an electronic communication service provider;
ot constitute electronic surveillance, as limited byNo similar provision.
ilar provision. — the acquisition complies with the limitations in subsection (b);
ust be supported, as appropriate, by the affidavit of any — the certification must be supported, as appropriate, by the affidavit of any
national security who is appointed by theappropriate official in the area of national security who is appointed by the
esident, by and with the consent of the Senate; or the head of any element ofPresident, by and with the consent of the Senate; or the head of an element of the
ence community.intelligence community;
CRS-13
H.R. 3773 — House Amendment to the Senate Amendment
ilar provision. — the certification must include —
— an effective date for the authorization that is between 30 and 60 days
from the submission of the written certification to the court; or
— if the acquisition has begun or will begin in less than 30 days from the
submission of the written certification to the court —
— the date the acquisition began or the effective date for the acquisition;
iki/CRS-RL34533
g/w— a description of why implementation was required in less than 30 days
s.orfrom the submission of the written certification to the court; and
leak
— if the acquisition is authorized under paragraph (1)(B), the basis for the
://wikidetermination that an emergency situation exists, immediate action by the
httpgovernment is required, and time does not permit the completion of judicial
review prior to the initiation of the acquisition.
uch a certification is not required to identify the specific facilities, places, — A certification made under this subsection is not required to identify the
ises, or property at which the acquisition will be directed or conducted.specific facilities, places, premises, or property at which the acquisition will be
directed or conducted.
ception to certification requirement where immediate government actionException to certification requirement for emergency authorization: Under
Under new subsection 703(f)(1)(B), if the AG and the DNI determinenew subsection 702(g)(1)(B), if the AG and the DNI determine that an
immediate federal government action is required and time does not permitemergency situation exists, immediate action by the Government is required, and
CRS-14
H.R. 3773 — House Amendment to the Senate Amendment
preparation of a certification before initiation of an acquisition, the AG andtime does not permit the completion of judicial review pursuant to subsection (i)
e DNI shall prepare a certification, including such determination, as soon asprior to the initiation of an acquisition, the AG and the DNI may authorize the
ent more than 7 days after the determination is made. acquisition and shall submit to the Foreign Intelligence Surveillance Court a
certification under this subsection as soon as possible but in no event more than
ission of certification and supporting affidavit to FISC: The AG mustSubmission of certification and supporting affidavit to FISC: The AG shall
it a copy of a certification and any supporting affidavit under seal to thetransmit a copy of a certification and any supporting affidavit under seal to the
SC as soon as possible within 5 days after such certification is made, there toFISC before the initiation of an acquisition under this section, except in
iki/CRS-RL34533aintained under security measures adopted by the Chief Justice of theaccordance with paragraph (1)(B). The AG shall maintain such certification
g/wited States and the AG, in consultation with the DNI. The certification shallunder security measures adopted by the Chief Justice of the United States and the
s.orect to judicial review under subsection 703(h).AG, in consultation with the DNI. The certification submitted pursuant to this
leaksubsection shall be subject to judicial review pursuant to subsection 702(i).
://wiki
httpilar provisions.Criteria for guidelines: The guidelines for compliance, which must be adopted
by the AG in consultation with the DNI, are to contain specific criteria for
determining whether a significant purpose of an acquisition is to acquire the
communications of a specific U.S. person reasonably believed to be located in
the United States. Such criteria shall include consideration of whether —
— the department or agency of the Federal Government conducting the
acquisition has made an inquiry to another department or agency of the Federal
Government to gather information on the specific U.S. person;
— the department or agency of the Federal Government conducting the
acquisition has provided information that identifies the specific U.S. person to
CRS-15
H.R. 3773 — House Amendment to the Senate Amendment
another department or agency of the Federal Government;
— the department or agency of the Federal Government conducting the
acquisition determines that the specific U.S. person has been the subject of
ongoing interest or repeated investigation by a department or agency of the
Federal Government; and
— the specific U.S. person is a natural person.
iki/CRS-RL34533ilar provision.Training with regard to guidelines: The Director of National Intelligence shall
g/westablish a training program for appropriate personnel of the intelligence
s.orcommunity to ensure that the guidelines adopted pursuant to paragraph (1) are
leakproperly implemented.
://wikiilar provision.Submission of guidelines to congressional intelligence and judiciary
httpcommittees and to the FISC: The Attorney General shall submit the guidelines
adopted pursuant to paragraph (1) to the congressional intelligence committees;
the Committees on the Judiciary of the House of Representatives and the Senate;
and the Foreign Intelligence Surveillance Court. New subsection 702(f).
rectives and Judicial Review of Directives
rectives to electronic communication service provider in connection withDirectives to electronic communication service provider in connection with
ed jointly by the AG and the DNI, new subsectionan acquisition authorized jointly by the AG and the DNI pursuant to an
FISA: The AG and the DNI may direct in writing an electronicorder issued by the FISC in accordance with subsection 702(i)(3) or an
munication service provider to immediately provide the government with allemergency determination under subsection 702(g)(1)(B), new subsection
CRS-16
H.R. 3773 — House Amendment to the Senate Amendment
ation, facilities, or assistance necessary to accomplish the acquisition in702(h) of FISA: The AG and the DNI may direct in writing an electronic
anner that will protect the secrecy of the acquisition and produce a minimumcommunication service provider to immediately provide the government with all
ith the services that such electronic communication serviceinformation, facilities, or assistance necessary to accomplish the acquisition
ovider is providing to the target; and to maintain under security proceduresauthorized in accordance with this section in a manner that will protect the
ed by the AG and the DNI any records concerning the acquisition or thesecrecy of the acquisition and produce a minimum of interference with the
mmunication service provider wishes toservices that such electronic communication service provider is providing to the
aintain.target of the acquisition; and maintain under security procedures approved by the
AG and the DNI any records concerning the acquisition or the aid furnished that
such electronic communication service provider wishes to maintain.
iki/CRS-RL34533mpensation: The federal government shall compensate, at the prevailingSimilar provision.
g/wmunication service provider for providing information,
s.or
leak
://wikilease from liability for electronic communication service providers whornish aid to the government pursuant to such a directive: NotwithstandingSimilar provision.
http other law, no cause of action shall lie in any court against any electronic
munication service provider for providing any information, facilities, or
ith such a directive.
allenging of directives: Permits an electronic communication serviceSimilar provision.
ider receiving such a directive to challenge it by filing a petition to modify
or set it aside with the FISC. Within 24 hours, the presiding judge of the FISC
n the petition to a judge of the FISC petition review pool established
SA, 50 U.S.C.§ 103(e)(1).
andard of review: The judge considering the petition to modify or set asideSimilar provision, except reference is to new section 702 of FISA.
CRS-17
H.R. 3773 — House Amendment to the Senate Amendment
ve may grant it only if the judge finds that the directive does not meet
ents of new section 703 of FISA or is otherwise unlawful.
ocedures for Initial Review of Petition: A judge shall conduct an initialSimilar provision.
iew not later than 5 days after being assigned a petition. If the judge
ines that the petition consists of claims, defenses, or other legal
by existing law or by a nonfrivolous argument
extending, modifying, or reversing existing law or for establishing new law,
udge shall immediately deny the petition and affirm the directive or any part
iki/CRS-RL34533 the directive that is the subject of the petition and order the recipient to
g/wply with the directive or any part of it. Upon making such a determination
s.orptly thereafter, the judge shall provide a written statement for the record
leakination under this subparagraph.
://wikiocedures for Plenary Review: If a judge determines that a petition requiresSimilar provision.
http review, the judge shall affirm, modify, or set aside the directive that is
ect of that petition within 30 days of assignment of the petition to that
e. Exception to 30 day time limit: The judge may extend the 30 day time
e as needed to comport with the Fifth Amendment due process clause. Such
ust be by order stating the reasons therefor. Unless the judge sets
e, he or she shall immediately affirm or affirm with
odifications the directive, and order the recipient to comply with the directive
its entirety or as modified. The judge shall provide a written statement for the
ination under this subparagraph.
inued Effect: Any directive not explicitly modified or set aside under thisSimilar provision.
CRS-18
H.R. 3773 — House Amendment to the Senate Amendment
raph shall remain in full effect.
ntempt of Court: Failure to obey an order of the FISC issued under thisSimilar provision.
raph may be punished as contempt of court.
forcement of new subsection 703(h) directives: In a case of failure toEnforcement of new subsection 702(g) directives: Similar provisions.
ply with such a directive, the AG may petition the FISC for an order to
pel compliance. The presiding judge of the FISC shall assign the case to a
dge of the petition review pool of the FISC within 24 hours of filing of the
iki/CRS-RL34533
g/wandard for review: A judge considering a petition filed under subparagraphNo similar provision.
s.or
leak) shall issue an order requiring the electronic communication service provider
omply with the directive or any part of it, as issued or as modified, if the
://wikie finds that the directive meets the requirements of this section, and is
http
ocedures for review: The judge shall render a determination not later thanProcedures for review: A judge considering such a petition shall issue an order
s after being assigned a petition filed under subparagraph (A), unless therequiring the electronic communication service provider to comply with the
e, by order for reasons stated, extends that time if necessary to comport withdirective or any part of it, as issued or as modified not later than 30 days after
endment to the Constitution of the Unitedbeing assigned the petition if the judge finds that the directive meets the
ates. The judge shall provide a written statement for the record of the reasonsrequirements of this section and is otherwise lawful. The judge shall provide a
ination under this paragraph.written statement for the record of the reasons for a determination under this
paragraph.
empt of Court: Failure to obey an order of the FISC issued under thisSimilar provision.
raph may be punished as contempt of court.
CRS-19
H.R. 3773 — House Amendment to the Senate Amendment
process: Any process under this paragraph may be served in anySimilar provision.
hich the electronic communication service provider may be
peal to the Foreign Intelligence Surveillance Court of Review (FISCR) ofSimilar provision.
ISC order affirming, modifying, or setting aside a directive, or
shing failure to obey such an order: An appeal to the FISCR may be filed
the government or an electronic communication service provider receiving
a directive. The FISCR shall have jurisdiction to consider such a petition
iki/CRS-RL34533shall provide a written statement for the record of the reasons for a decisionraph.
g/w
s.or
leak.S. Supreme Court: The government or an electronicSimilar provision.
munication service provider receiving a such a directive may petition the
://wikiS. Supreme Court for review of an such an FISCR decision The record for
httpiew shall be transmitted under seal to the Supreme Court, which shall
e jurisdiction to review such decision.
cial Review of Certifications, Targeting Procedures and Minimization Procedures
risdiction of FISC: The FISC shall have jurisdiction to review anyJurisdiction of FISC: The FISC shall have jurisdiction to review any
new subsection 703(c), and targeting procedures andcertification submitted pursuant to new subsection 702(g), and targeting
inimization procedures adopted under new subsections 703(d) and (e).procedures and minimization procedures adopted under new subsections 702(d)
and (e).
certifications, targeting procedures or minimizationNo similar provision.
es to the FISC: Certifications, targeting procedures, and minimization
CRS-20
H.R. 3773 — House Amendment to the Senate Amendment
itted by the AG to the FISC within 5 days after making
ending the certification or adopting the procedures.
ilar provision.Time period for review: The Court shall review the certification submitted
pursuant to new subsection 702(g) and the targeting and minimization
procedures required by new subsections 702(d) and (e) and approve or deny an
order under this subsection not later than 30 days after the date on which a
certification is submitted.
iki/CRS-RL34533 of certifications: Under subsection 703(h), the FISC shallJudicial review of certifications: The FISC shall review the certification to
g/wiew the certification to determine whether the certification contains all thedetermine whether the certification contains all the required elements.
s.orents.
leak
review of targeting procedures: Under subsection 703(h), the FISCSimilar provision, new subsection 702(i).
://wikiall review the targeting procedures required by subsection (d) to assess
httpether the procedures are reasonably designed to ensure that the acquisition
ed under subsection (a) is limited to the targeting of persons reasonably
ed to be located outside the United States and does not result in the
communication as to which the sender and all
nown at the time of the acquisition to be located in the
ited States.
of minimization procedures: Under subsection 703(h) ofSimilar provision, new subsection 702(i) of FISA.
SA, the FISC shall assess whether such procedures meet the definition of
inimization procedures under section 101(h) or section 301(4).
CRS-21
H.R. 3773 — House Amendment to the Senate Amendment
certifications, targeting procedures and minimizationApproval of certifications, targeting procedures and minimization
he FISC: Under new subsection 703(h)(5) of FISA, if the FISCprocedures by the FISC: If the FISC finds that a certification submitted
ds the certification contains all such required elements and the targetingpursuant to new subsection 702(g) of FISA contains all of the required elements
minimization procedures meet the required standards and areand that the procedures required by new subsections 702(d) and (e) are consistent
nsistent with the fourth amendment to the U.S. Constitution, the court mustwith the requirements of those subsections and with the fourth amendment to the
ing the continued use of the procedures for the acquisitionConstitution of the United States, the FISC shall enter an order approving the
ed under new subsection 703(a) of FISA. certification and the use of the procedures for the acquisition.
rrection of deficiencies: If the FISC finds that a certification required byCorrection of deficiencies: If the FISC finds that a certification submitted
iki/CRS-RL34533 subsection 703(f) of FISA does not contain all of the required elements, orpursuant to new subsection 702(g) of FISA does not contain all of the required
g/wprocedures required by new subsections 703(d) and (e) are not consistentelements or that the procedures required by subsections 702(d) and (e) are not
s.orents of those subsections or the fourth amendment to theconsistent with the requirements of those subsections or the fourth amendment
leaknited States, the Court shall issue an order directing theto the Constitution of the United States —
vernment to, at the Government’s election and to the extent required by the
://wikiSC’s order, correct any deficiency identified by the FISC’s order not later than — in the case of a certification submitted in accordance with new subsection
https after the date the FISC issues the order; or cease the acquisition702(g)(1)(A) of FISA, the Court shall deny the order, identify any deficiency in
ed under new subsection 703(a). Simultaneously with the orders, thethe certification or procedures, and provide the Government with an opportunity
SC must provide a written statement for the record of the reasons for itsto correct such deficiency; and
— in the case of a certification submitted in accordance with new subsection
702(g)(1)(B) of FISA, the Court shall issue an order directing the Government
to, at the Government’s election and to the extent required by the Court’s order:
— correct any deficiency identified by the Court not later than 30 days
after the date the Court issues the order; or
CRS-22
H.R. 3773 — House Amendment to the Senate Amendment
— cease the acquisition authorized under new subsection 702(g)(1)(B) of
FISA.
Simultaneously with the orders, the FISC must provide a written statement for
the record of the reasons for its decision.
any FISC order under section 703 to FISCR and petitions forSimilar provision, new subsection 702(i)(4) of FISA.
Under new subsection 703(h)(6) of
SA, the government may appeal any FISC order under this section to the
iki/CRS-RL34533SCR and may file a petition for certiorari to the U.S. Supreme Court to reviewFISCR decision. The FISCR must provide a written statement of the reasons
g/w
s.or
leaktinuation of acquisition pending rehearing or appeal. Any acquisitionContinuation of acquisition pending rehearing or appeal: Any acquisition
://wiki an order under new subsection 703(h)(5) of FISA to correctithin 30 days or to cease the acquisition may continue during theaffected by an order under new subsection 702(i)(3)(B)(ii) of FISA (dealing witha certification submitted to the FISC within 7 days of an emergency
httpndency or any rehearing or the order by the FISC en banc. (See subsectionauthorization) to correct deficiencies within 30 days or to cease the acquisition
FISC en banc authority. Section 109 of the bill givesmay continue during the pendency or any rehearing or the order by the FISC en
SC authority, on its own initiative, or upon the request of the governmentbanc. (See subsection 109(b) of the bill creating FISC en banc authority.
under subsections 501(f) or new subsections 703(h)(4) or (5) ofSection 109 of the bill gives the FISC authority, on its own initiative, or upon the
SA, to hold a hearing or rehearing en banc when ordered by a majority of therequest of the government or of a party under subsections 501(f) or new
SC judges upon a determination that en banc consideration is necessary tosubsections 703(h)(4) or (5) of FISA, to hold a hearing or rehearing en banc
or maintain uniformity of the court’s decisions, or the proceeding involveswhen ordered by a majority of the FISC judges upon a determination that en
portance.)banc consideration is necessary to secure or maintain uniformity of the court’s
decisions, or the proceeding involves a question of exceptional importance.)
If the government appeals an order under section 703 of FISA, any — If the government appeals an order under section 702 of FISA, any
CRS-23
H.R. 3773 — House Amendment to the Senate Amendment
an order under subsection 703(h)(5)(B) may continueacquisition affected by an order under new subsection 702(i)(3)(B)(ii) (dealing
the FISCR enters an order regarding implementation of a correction orderwith a certification submitted to the FISC within 7 days of an emergency
appeal under subsection 703(h)(5)(C). authorization) to correct deficiencies within 30 days or to cease the acquisition
may continue until the FISCR enters an order under new subsection 702(i)(4)(A).
any or all of a deficiency order pending appeal: UnderImplementation of any or all of a deficiency order pending appeal: Under
bsection 703(h)(6)(C) of FISA, not later than 60 days after the filing of ansubsection 702(i)(3)(C)of FISA, not later than 60 days after the filing of an
of an FISC order under subsection 703(h)(5)(B), directing the correctionappeal of an FISC order under subsection 702(i)(3)(B), directing the correction
, the FISCR shall determine and enter a corresponding orderof a deficiency, the FISCR shall determine and enter a corresponding order
iki/CRS-RL34533arding whether all or any part of the correction order, as issued or asregarding whether all or any part of the correction order, as issued or as
g/wodified, shall be implemented during the pendency of the appeal.modified, shall be implemented during the pendency of the appeal. The
s.orGovernment shall conduct an acquisition affected by such an order issued under
leakparagraph (3)(B)(ii) in accordance with an order under issued under subsection
://wiki
http
CRS-24
H.R. 3773 — House Amendment to the Senate Amendment
cial Proceedings
pedited proceedings: Judicial proceedings shall be as expeditious asExpedited proceedings: Judicial proceedings under this section shall be
tion 703(i) of FISA.conducted as expeditiously as possible. New subsection 702(j)(1) of FISA.
ilar provision.Time limits: A time limit for a judicial decision in this section shall apply
unless the Court, the Court of Review, or any judge of either the Court or the
Court of Review, by order for reasons stated, extends that time for good cause.
New subsection 702(j)(2) of FISA.
iki/CRS-RL34533petitions under new section 703 of FISA are to be filed under seal. Upon theSimilar provision. New subsection 703(k) of FISA.
g/wquest of the government, any government submission or portions thereof which
s.or
leakay include classified information shall be reviewed ex parte and in camera.
s must be maintained under security measures
://wiki the Chief Justice of the United States in consultation with the AG and
http. A directive or an order granted under new section 703 of FISA must
ears. New subsection 703(k) of FISA.
acement and Reauthorization of Authorizations in Effect; Schedule
ilar provision.Replacement of Authorizations in Effect under PAA: Under new subsection
702(i)(5)(A) of FISA, if the AG and the DNI seek to replace an authorization
issued under section 105B of FISA, as added by section 2 of the PAA, the AG
and DNI shall, to the extent practicable, submit to the FISC a certification under
new subsection 702(g) of FISA, and the targeting and minimization procedures
and compliance guidelines required by new subsections 702(d), (e), and (f) of
FISA at least 30 days before the expiration of the PAA authorization involved.
CRS-25
H.R. 3773 — House Amendment to the Senate Amendment
ilar provision.Reauthorization of Authorizations in Effect: Under new subsection
702(i)(5)(B), if the AG and the DNI seek to replace an authorization issued under
this section (which appears to refer to authorizations issued under new section
702 of FISA), the AG and DNI shall, to the extent practicable, submit to the
FISC a certification under new subsection 702(g) of FISA, and the targeting and
minimization procedures and compliance guidelines required by new subsections
702(d), (e), and (f) of FISA at least 30 days before the expiration of the
authorization involved.
iki/CRS-RL34533ilar provision.Consolidated submissions: Under new subsection 702(i)(5)(C) of FISA, the
g/wAG and DNI shall, to the extent practicable, annually submit to the FISC a
s.orconsolidation of certifications under subsection (g) for reauthorization of
leakauthorizations in effect; the targeting procedures, minimization procedures, and
compliance guidelines required by new subsections 702(d), (e), and (f) of FISA;
://wikiand the annual review required by new subsection 702(l)(3) to be conducted by
httpeach element of the intelligence community conducting an acquisition under new
subsection 702(a) to determine whether there is reason to believe that foreign
intelligence information has been or will be obtained from the acquisition.
— To the extent practicable, the AG and DNI shall schedule the completion of
the annual review required under new subsection 703(l)(3) and the semiannual
assessment required under subsection 702(l)(1) so that they may be submitted to
the FISC at the time of the consolidated submission under new subsection
— This shall not be construed to preclude the DNI and AG from submitting
CRS-26
H.R. 3773 — House Amendment to the Senate Amendment
certifications for additional authorizations at other times of the year as needed.
New subsection 702(i)(5)(E) of FISA.
— At or before the end of the time period for which a certification and
applicable targeting procedures and minimization procedures are approved by
a FISC order under new section 702, the FISC may assess compliance with the
minimization procedures by reviewing the circumstances under which
information concerning U.S. persons was acquired, retained, or disseminated.
New subsection 702(i)(6) of FISA.
iki/CRS-RL34533s and Reviews
g/w
s.oriannual Assessment: Not less than every six months, the AG and DNI shallSemiannual Assessments: Not less than every six months, the AG and DNI
leakpliance with targeting and minimization procedures. Assessmentsshall assess compliance with targeting and minimization procedures and
://wikiitted to the FISC and the congressional intelligence committees.compliance guidelines. Assessments shall be submitted to the FISC, thecongressional intelligence committees and the House and Senate Judiciary
httpCommittees. New subsection 702(l).
ency Assessment: Inspectors General (IGs) of USDOJ and of any elementAgency Assessment: Similar, but not identical provision. The points of
ence community authorized to acquire foreign intelligencedifference are: The IGs of USDOJ and of any element of the intelligence
ation under new subsection 703(a) of FISA are authorized to reviewcommunity authorized to acquire foreign intelligence information under new
pliance with targeting and minimization procedures by their department,subsection 702(a) of FISA are authorized to review compliance with targeting
ency, or element. In connection with such acquisitions, these IGs shall reviewand minimization procedures and compliance guidelines by their department or
ber of disseminated intelligence reports containing a reference to aelement. The review shall be provided not only to the AG, the DNI and the
ited States person identity and the number of U.S. person identitiescongressional intelligence committees, but also to the House and Senate
disseminated by the element concerned in response to requests forJudiciary Committees and the FISC. [Emphasis added.] New subsection
ere not referred to by name or title in the original reporting; and702(l)(2).
CRS-27
H.R. 3773 — House Amendment to the Senate Amendment
ber of targets later determined to be located in the United States and, to
hether their communications were reviewed. Each review
ided to the AG, the DNI, and the congressional intelligence
mittees.
Review: The head of an element of the intelligence communitySimilar, but not identical, provision. New subsection 703(l)(3) requires the head
an acquisition under new subsection 703(a) of FISA shall direct thatof the element of the intelligence community to conduct the annual review.
ent to conduct an annual review to determine whether there is reason to
e that foreign intelligence information has been or will be obtained from
iki/CRS-RL34533iew shall include the number of disseminated
g/wence reports containing a reference to a U.S. person identity; the number
s.orU.S. person identities subsequently disseminated by that element in response
leakere not referred to by name or title in the original
; and the number of targets that were later determined to be located in
://wikithe extent possible, whether their communications were
httpiewed. The annual review shall also include a description of any procedures
eloped by the head of an element of the intelligence community and approved
the DNI to assess, in a manner consistent with national security, operational
ents and the privacy interests of U.S. persons, the extent to which the
authorized under new subsection 703(a) of FISA acquire the
munications of U.S. persons, as well as the results of any such assessment.
Review: The head of each element of the intelligence community thatSimilar provision.
iew shall use each such review to evaluate the
of the minimization procedures utilized by that element or the
of the minimization procedures to a particular acquisition authorized
CRS-28
H.R. 3773 — House Amendment to the Senate Amendment
SA.
ovision of Review: Each such annual review shall be provided by the headSimilar, but not identical provision. Such annual review would be provided not
ant intelligence community element to the FISC, the AG, the DNI,only to the FISC, the AG, the DNI, and the congressional intelligence
ressional intelligence committees.committees, but also to the House and Senate Judiciary Committees.
ilar provision.Construction: Under new subsection 702(m) of FISA, Nothing in FISA shall
be construed to require an application under section 104 of FISA for an
acquisition that is targeted in accordance with section 702 at a person reasonably
iki/CRS-RL34533believed to be located outside the United States.
g/wquisitions Inside the United States Targeted at U.S. Persons Located Outside the United States
s.or
leaknew subsection 704 of FISA inside the UnitedCertain acquisitions under new subsection 703 of FISA inside the United
://wiki.S. persons outside the United States. Under newSA, the FISC has jurisdiction to enter an order approvingStates of U.S. persons outside the United States. Under new subsection 703(a)of FISA, the FISC has jurisdiction to review an application and to enter an order
httpeting of a U.S. person reasonably believed to be located outside the Unitedapproving targeting of a U.S. person reasonably believed to be located outside
n intelligence information, if such an acquisitionthe United States to acquire foreign intelligence information if the acquisition
eillance as defined under subsection 101(f) of FISA,constitutes electronic surveillance or the acquisition of stored electronic
ardless of the limitation in new section 701 of FISA, or the acquisition ofcommunications or stored electronic data that requires an order under FISA and
munications or stored electronic data that requires an ordersuch acquisition is conducted within the United States. [Emphasis added.]
SA, and such acquisition is conducted in the United States.
Limitation: if a U.S. person so targeted is reasonably believed to be located — Limitation: if a U.S. person targeted under subsection 703(a) is reasonably
the pendency of an order issued under new subsection 704(c)believed to be located in the United States during the pendency of an order
SA, then the acquisition must cease until authority, other than under newissued under new subsection 703(c), such acquisition shall cease unless
SA or the targeted U.S. person is againauthority, other than under new section 703, is obtained pursuant to FISA or the
CRS-29
H.R. 3773 — House Amendment to the Senate Amendment
believed to be located outside the U.S. during the pendency of antargeted U.S. person is again reasonably believed to be located outside the
United States during the pendency of an order issued pursuant to new subsection
Application: new subsection 704(b) of FISA sets out the requirements for — Application: Similar provision in new subsection 703(b) of FISA.
SC order authorizing targeting of a U.S. person reasonably
ed to be located outside the United States for a period of up to 90 days.
on shall be made by a federal officer in writing upon oath or
ation to a judge having jurisdiction under subsection 704(a)(1) of FISA.
iki/CRS-RL34533 the approval of the AG based upon the AG’s
g/w that it satisfies the criteria and requirements of such application, as set
s.orrth in this section. An application shall include the identity of the federal
leakaking the application;
://wiki) the identity, if known, or a description of the U.S. person who is the target
http
ent of the facts and circumstances relied upon to justify the
belief that the U.S. person who is the target of the acquisition is —
believed to be located outside the United States; and
n power, an agent of a foreign power, or an officer or employee of a
n power;
) a statement of the proposed minimization procedures that meet the definition
CRS-30
H.R. 3773 — House Amendment to the Senate Amendment
inimization procedures under section 101(h) (with respect to electronic
eillance) or section 301(4) (with respect to physical searches);
ation sought and the type of
munications or activities to be subjected to acquisition;
n made by the AG or an official specified in section 104(a)(6)
iki/CRS-RL34533the certifying official deems the information sought to be foreign intelligence
g/wation;
s.or
leaknificant purpose of the acquisition is to obtain foreign intelligence
ation;
://wiki
httpormation cannot reasonably be obtained by normal investigative
) designates the type of foreign intelligence information being sought
to the categories described in section 101(e); and
) includes a statement of the basis for the certification that —
ation sought is the type of foreign intelligence information
nated; and
CRS-31
H.R. 3773 — House Amendment to the Senate Amendment
) such information cannot reasonably be obtained by normal investigative
) a summary statement of the means by which the acquisition will be
hether physical entry is required to effect the acquisition;
) the identity of any electronic communication service provider necessary to
provided, however, that the application is not required to
the specific facilities, places, premises, or property at which the
iki/CRS-RL34533ed under this section will be directed or conducted;
g/w
s.orent of the facts concerning any previous applications that have been
leakade to any judge of the FISC involving the U.S. person specified in the
en on each previous application; and
://wiki
http) a statement of the period of time for which the acquisition is required to be
aintained, provided that such period of time shall not exceed 90 days per
) OTHER REQUIREMENTS OF THE ATTORNEY GENERAL- The AG may
other affidavit or certification from any other officer in connection
) OTHER REQUIREMENTS OF THE JUDGE- The judge may require the
h other information as may be necessary to make the
s required by subsection 704(c)(1) of FISA.
CRS-32
H.R. 3773 — House Amendment to the Senate Amendment
Order: new subsection 704(c) of FISA sets out the requirements for a FISC — Order: Similar provision, new subsection 703(c) of FISA.
ing targeting of a U.S. person reasonably
ed to be outside the U.S. and the scope of judicial review. To issue such
order, a FISC judge must find, in part, that, on the basis of facts submitted by
is probable cause that the U.S. person who is the target of the
believed to be located outside the U.S., and is a foreign
an agent of a foreign power, or an officer or employee of a foreign power.
view by a FISC judge is limited to that needed to make the findings required.
e Government may appeal a FISC judge’s determination (1) that the facts
iki/CRS-RL34533itted in the application are insufficient to establish probable cause to issue
g/winimization procedures do not meet the
s.orinimization procedures in subsection 101(h) or 301(4) of FISA;
leakall of the required elements; or (4) that
ade by the AG or an official specified in subsection
://wiki erroneous on the basis of the statement upon which the
https) is (are) based and any other information that the judge may
ay be necessary to make the required findings. The Government
ay seek appellate review of such FISC judge’s determination before the
SCR, and may file a petition for certiorari to the U.S. Supreme Court.
Duration: A section 704 order may be for up to 90 days, and may be — Duration: Similar provision, new subsection 703(c)(6).
for additional 90-day periods upon submission of renewal applications.
e original applications and renewal applications must satisfy the same criteria
New subsection 704(c)(6).
Compliance review: At or before the end of the period for which an — Compliance review: Similar provision, new subsection 703(c)(7).
CRS-33
H.R. 3773 — House Amendment to the Senate Amendment
is approved by a FISC order or extension under new section 704, the
e may assess compliance with applicable minimization procedures by
iewing the circumstances under which information concerning U.S. persons
inated.
Emergency authorization: New subsection 704(d) permits emergency — Emergency authorization: Similar provision. New subsection 703(d).
ation by the AG of an acquisition of foreign intelligence information for
an order under subsection 704(c) may be obtained, if the AG reasonably
ines that an emergency situation exists with respect to the acquisition of
iki/CRS-RL34533n intelligence information before an order under subsection 704(c)
g/way with due diligence be obtained; and that the factual basis for issuance of
s.orhe AG, or his designee, must give a FISC judge notice at
leake of the emergency authorization, and an application for a court order
der section 704 must be made as soon as practicable within 7 days after the
://wikiergency authorization of the acquisition. Minimization procedures required
httpr under section 704 must be followed during an
ergency authorization. An emergency authorization must be terminated when
information sought is obtained, when the application for an order is denied,
s from the time of the emergency authorization expires, whichever
nless the target of the acquisition is determined to be a non-U.S.
g the 7-day period, if no court order is issued approving the
ergency acquisition then (1) no information obtained or evidence derived
m the emergency acquisition shall be received in evidence or otherwise
proceeding before an federal, state, or local authority; and (2)
ation concerning any U.S. person acquired from such emergency
be used or disclosed in any other manner by
CRS-34
H.R. 3773 — House Amendment to the Senate Amendment
employees without the consent of that U.S. person, except
al of the AG if the information indicates a threat of death or
harm to any person.
Release from liability: Under new subsection 704(e) of FISA,— Release From Liability: Under new subsection 703(e) of FISA,
any other law, no cause of action shall lie in any court againstnotwithstanding any other provision of law, no cause of action shall lie in any
electronic communication service provider for providing any information,court against any electronic communication service provider for providing any
in accordance with an order or request for emergencyinformation, facilities, or assistance in accordance with an order or request for
emergency assistance issued pursuant to subsection (c) or (d). [Emphasis
iki/CRS-RL34533 added.]
g/w
s.orAppeal: Under new subsection 704(f) of FISA, the Government may seek — Appeal: Similar provision, new subsection 703(f).
leakiew of a section 704 FISC order before the FISCR, and may file a
.S. Supreme Court.
://wiki
httpilar provision. — Construction: Nothing in this Act shall be construed to require an
application under section 104 of FISA for an acquisition that is targeted in
accordance with this section at a person reasonably believed to be located outside
the United States.
ther Acquisitions Targeting United States Persons Outside the United States
ther acquisitions targeting U.S. persons outside the U.S. under new sectionOther acquisitions targeting U.S. persons outside the United States under
FISA. new section 704 of FISA.
The FISC has jurisdiction to enter orders underJurisdiction and Scope: The FISC has jurisdiction to enter orders under
bits any element of the intelligencesubsection 704(c). Section 704 provides that no department or agency of the
CRS-35
H.R. 3773 — House Amendment to the Senate Amendment
munity from intentionally targeting, for purposes of acquiring foreignfederal government may intentionally target, for the purpose of acquiring foreign
ence information, a U.S. person reasonably believed to be located outsideintelligence information, a U.S. person reasonably believed to be located outside
stances in which the targeted U.S. person has a reasonablethe United States under circumstances in which the targeted U.S. person has a
privacy and a warrant would be required if the acquisition werereasonable expectation of privacy and a warrant would be required if the
ent purposes, unless a FISC judge hasacquisition were conducted inside the United States for law enforcement
ed an emergency acquisition under FISA.purposes, unless a FISC judge has entered an order with respect to such targeted
U.S. person or the AG has authorized an emergency acquisition pursuant to
subsection 704(c) or (d) or any other provision of FISA.
iki/CRS-RL34533mitations: Li mitations:
g/w
s.orf a U.S. person so targeted is reasonably believed to be located in the U.S.Similar, but not identical provision. If a targeted United States person is
leak the pendency of an order issued under new subsection 705(c) of FISA,reasonably believed to be in the United States during the pendency of an order
ust cease until authority, other than under new sectionissued pursuant to subsection 704(c), acquisitions relating to such targeted U.S.
://wikiSA or the targeted U.S. person is again reasonablyperson shall cease unless authority is obtained pursuant to FISA or the targeted
httped to be located outside the U.S. during the pendency of such order. NewU.S. person is again reasonably believed to be located outside the United States
during the pendency of such order. [Emphasis added.] New subsection
Applicability: Under new subsection 705(a)(3)(B) of FISA, if the— Applicability: Under new subsection 704(a)(3)(B) of FISA, if the acquisition
inside the United States and could be authorizedis to be conducted inside the United States and could be authorized under new
procedures apply, unless an ordersection 703, then the acquisition may only be conducted if authorized under
ergency acquisition authority has been issued under another provision ofsection 703 or in accordance with another provision of FISA other than section
SA other than section 705. 704.
Application: New subsection 705(b) of FISA sets out the requirements for — Application: Similar, but not identical provision. New subsection 704(b)
CRS-36
H.R. 3773 — House Amendment to the Senate Amendment
SC order authorizing targeting of a U.S. person reasonablyof FISA sets out the requirements for an application for a FISC order authorizing
ed to be located outside the U.S. Each application shall be made intargeting of a U.S. person reasonably believed to be located outside the U.S.
iting under oath by a federal officer to a FISC judge. Each application shallEach application shall be made in writing under oath by a federal officer to a
al of the AG based upon the AG’s finding that it satisfies theFISC judge. Each application shall require the approval of the AG based upon
ents set forth in subsection 705(b). These include:the AG’s finding that it satisfies the criteria and requirements set forth in
subsection 704(b). These criteria and requirements differ in two respects from
— the identity, if known, or a description of the specific United Statesthe Senate version of the bill. The House amendment to the Senate amendment
person who is the target of the acquisition;to H.R. 3773 requires that the application include the identity of the federal
officer making the application, while the Senate amendment to H.R. 3773 does
iki/CRS-RL34533 — a statement of the facts and circumstances relied upon to justify thenot. In addition, the House bill specifies that the definition of minimization
g/wapplicant’s belief that the United States person who is the target of theprocedures under section 101(h) of FISA apply in the case of electronic
s.oracquisition is a person reasonably believed to be located outside the Unitedsurveillance, while the definition of minimization procedures in subsection
leakStates; and a foreign power, an agent of a foreign power, or an officer or301(4) of FISA apply in the case of a physical search.
employee of a foreign power;
://wiki
http — a statement of the proposed minimization procedures that meet the
definition of minimization procedures under section 101(h) or section
— a certification made by the AG, an official specified in section
104(a)(6) of FISA, or the head of an element of the intelligence community
that the certifying official deems the information sought to be foreign
intelligence information; and that a significant purpose of the acquisition
is to obtain foreign intelligence information;
— a statement of the facts concerning any previous applications that have
CRS-37
H.R. 3773 — House Amendment to the Senate Amendment
been made to any judge of the FISC involving the U.S. person specified in
the application and the action taken on each previous application; and
— a statement of the period of time for which the acquisition is required
to be maintained, provided that such period of time shall not exceed 90
days per application.
Order: New subsection 705(c) of FISA sets out the requirements for an ex — Order: Under new subsection 704(c) of FISA, where an application has
SC order under this section finding that the all of the applicablebeen made under subsection 704(b), the FISC shall enter an ex parte order as
iki/CRS-RL34533quirements in subsection 705(c)(1) have been satisfied. The subsection alsorequested or as modified if it finds that the applicable requirements in subsection
g/wudicial review of the FISC order. 704(c)(1) have been satisfied. The subsection also specifies the scope of judicial
s.orreview of the FISC order.
leak
— To issue such an order, a FISC judge must find, in part, that, on the — These requirements differ from those in the Senate bill in two respects.
://wikibasis of facts submitted by the applicant, there is probable cause to believeFirst, the FISC must find as to whether the application has been made by
httpthat the U.S. person who is the target of the acquisition is reasonablya federal officer and approved by the AG. Second, the FISC is explicitly
believed to be located outside the U.S.; and is a foreign power, an agent ofrequired to make a finding as to whether the minimization procedures, in
a foreign power, or an officer or employee of a foreign power. In makingthe case of an electronic surveillance, meet the definition under subsection
such a probable cause determination, a FISC judge may consider past101(h) of FISA, and, in the case of a physical search, meet the definition
activities of the target and facts and circumstances related to futurein subsection 310(4) of FISA. While the application of the two definitional
activities of the target. No U.S. person may be considered a foreign power,sections, respectively, to these two types of investigative techniques may
an agent of a foreign power, or an officer or employee of a foreign powerbe seen as implicit in the Senate bill, it is not explicit.
solely on the basis of activities protected by the first amendment of the
U.S. Constitution.
— The FISC judge must also find that the dissemination provisions of the
CRS-38
H.R. 3773 — House Amendment to the Senate Amendment
proposed minimization procedures meet the definition of minimization
procedures under subsection 101(h) or subsection 301(4); that the
application which has been filed contains all statements and certifications
required by subsection 705(b), and that the certification provided under
subsection 705(b)(4) is not clearly erroneous on the basis of the
information furnished under subsection 705(b).
Review by an FISC judge is limited to that needed to make the findingsSimilar provision, new subsection 704(c)(3)(A).
quired. The FISC judge does not have jurisdiction to review the means by
iki/CRS-RL34533may be conducted. New subsection
g/w
s.or
leakAppeal to the FISCR of an FISC judge’s decision under section 705 and— Appeal to the FISCR of an FISC judge’s decision under section 704 and
certiorari to the U.S. Supreme Court from an FISCR decision:petition for certiorari to the U.S. Supreme Court from an FISCR decision:
://wikinew subsections 705(c)(3) and (e), the Government may appeal a FISCSimilar provision. New subsections 704(c)(3) and (e).
httpe’s written determination (1) that the facts submitted in the application are
issue an order; (2) that the proposed
inimization procedures do not meet the definition of minimization procedures
of FISA; or (3) that the certification made by the
on 104(a)(6) of FISA, or the head of an
ent of the intelligence community is clearly erroneous on the basis of the
ation furnished in the application. The Government may seek appellate
iew of such FISC judge’s determination before the FISCR, and may seek
iew of the FISCR’s decision by filing a petition for certiorari to the U.S.
e Court.
CRS-39
H.R. 3773 — House Amendment to the Senate Amendment
Duration: A section 705 order may be for up to 90 days, and may be — Duration: Similar provision. A section 704 order may be for up to 90 days,
day periods upon submission of renewal applications.and may be renewed for additional 90-day periods upon submission of renewal
e original applications and renewal applications must satisfy the same criteriaapplications. The original applications and renewal applications must satisfy the
same criteria under new subsection 704(b).
Compliance review: At or before the end of the period for which an — Compliance review: Similar provision, new subsection 704(c)(5) of FISA.
ed by a FISC order or extension under new section 705, the
e may assess compliance with applicable minimization procedures by
iewing the circumstances under which information concerning U.S. persons
iki/CRS-RL34533inated. New subsection 705(c)(5) of FISA.
g/w
s.orEmergency authorization: New subsection 705(d) permits emergency — Emergency authorization: Similar provision, new subsection 704(d).
leakation by the AG of an acquisition of foreign intelligence information for
an order under subsection 705(c) may be obtained, if the AG reasonably
://wikiines that an emergency situation exists with respect to the acquisition of
httpn intelligence information before an order under subsection 705(c)
ay with due diligence be obtained; and that the factual basis for issuance of
he AG, or his designee, must give a FISC judge notice at
e of the emergency authorization, and an application for a court order
er section 705 must be made as soon as practicable within 7 days after the
ergency authorization of the acquisition.
— Minimization procedures: Minimization procedures required forSimilar provision.
issuance of a court order under section 705 must be followed during an
emergency authorization.
CRS-40
H.R. 3773 — House Amendment to the Senate Amendment
— Termination of emergency authorization: An emergencySimilar provision.
authorization must be terminated when the information sought is obtained,
when the application for an order is denied, or when 7 days from the time
of the emergency authorization expires, whichever is earliest.
Use of information: Except under circumstances in which the target of theSimilar provision with respect to limitations on the use of information acquired
ined to be a non-U.S. person during the pendency of the 7-under an emergency authorization, or evidence derived therefrom, in the absence
, if no court order is issued approving theof a court order approving the acquisition, except under circumstances in which
ergency acquisition then (1) no information obtained or evidence derivedthe target of the acquisition is determined not to be a U.S. person. The House
iki/CRS-RL34533 the emergency acquisition shall be received in evidence or otherwisebill does not include the phrase “during the pendency of the 7-day emergency
g/wsclosed in any proceeding before an federal, state, or local authority; and (2)acquisition period” found in the Senate bill. New subsection 704(d).
s.or information concerning any U.S. person acquired from such emergency
leak shall subsequently be used or disclosed in any other manner by
ployees without the consent of that U.S. person; except
://wikial of the AG if the information indicates a threat of death or
http harm to any person. New subsection 705(d).
Appeal: The Government may seek appellate review of a section 705 FISC — Appeal: Similar provision, new subsection 704(e).
ISCR, and may file a petition for certiorari to the U.S. Supreme
CRS-41
H.R. 3773 — House Amendment to the Senate Amendment
applications and concurrent authorizations, new section 706 of FISA:Joint applications and concurrent authorizations, new section 705 of FISA:
Joint applications and orders: Under new section 706 of FISA, if an — Joint applications and orders: Similar provision.
targeting a U.S. person under section 704 or section 705 of FISA is
nd outside the U.S., then, upon the request
overnment in a joint application complying with the requirements of
, an FISC judge may simultaneously issue orders
iki/CRS-RL34533Concurrent authorization: If an order authorizing electronic surveillance — Concurrent authorization: If an order authorizing electronic surveillance
g/wphysical search has been obtained under section 105 or section 304 of FISA,has been obtained under section 105 of FISA and that order is still in effect,
s.orG may authorize, without an orderduring the pendency of that order the AG may authorize, without an order under
leakon 704 or an order under section 705, an acquisition of foreignsection 703 or 704, electronic surveillance for the purpose of acquiring foreign
ence information targeting that U.S. person while such person isintelligence information targeting that U.S. person while such person is
://wiki believed to be located outside the United States.reasonably believed to be located outside the United States. If an order
httpauthorizing a physical search has been obtained under section 304 of FISA and
that order is still in effect, during the pendency of that order the AG may
authorize, without an order under section 703 or 704, a physical search for the
purpose of acquiring foreign intelligence information targeting that U.S. person
while such person is reasonably believed to be located outside the United States.
CRS-42
H.R. 3773 — House Amendment to the Senate Amendment
Information Acquired under New Title VII of FISA
e of information acquired under new title VII of FISA, new section 707Use of information acquired under new title VII of FISA, new section 706
FISA:of FISA:
ormation acquired under new section 703. Under new subsection 707(a),Information acquired under new section 704. Similar but not identical
ation acquired from an acquisition conducted under new section 703 shallprovision. The House bill has no exception for purposes of subsection 106(j).
ed to be information acquired from an electronic surveillance pursuant
of FISA for purposes of section 106, except for the purposes of
iki/CRS-RL34533). (Subsection 106(j) deals with “notification of emergencyployment of electronic surveillance; contents; postponement, suspension or
g/wination.”)
s.or
leak
ormation acquired under new section 704. Under new subsection 707(b),Information acquired under new section 705. Similar provision.
://wikiation acquired from an acquisition conducted under new section 704 shall
httpdeemed to be information acquired from an electronic surveillance pursuant
of FISA for purposes of section 106.
onal Oversight
section 708: Section 708 sets out theCongressional oversight under new section 707: Section 707 sets out the
ents for such reports with respect to sections 703, 704, and 705. requirements for such reports with respect to sections 702, 703, and 704.
iannual Report. Every six months or less, the AG shall fully inform, in aSemiannual Report. Similar provision.
anner consistent with national security, the congressional intelligence
mmittees and the House and Senate Judiciary Committees concerning the
plementation of new title VII of FISA.
CRS-43
H.R. 3773 — House Amendment to the Senate Amendment
Requirements for each reporting period with respect to new section 703 — Requirements for each reporting period with respect to new section 702
FISA include: any certifications made under subsection 703(f); anyof FISA include: any certifications made under section 702(g) during the
es issued under subsection 703(g); a description of the judicial review ofreporting period; with respect to each certification made under subsection 702
such certifications and targeting and minimization procedures utilized with(1)(B), the reasons for exercising the authority under such paragraph; any
uisition, including a copy of any order or pleading indirectives issued under section 702(h) during the reporting period; a description
ith such review that contains a significant legal interpretation of theof the judicial review during the reporting period of any such certifications and
isions of this section; any actions taken to challenge or enforce a directivetargeting and minimization procedures adopted pursuant to subsections (d) and
)(4) or (5); any compliance reviews conducted by DOJ(e) of section 702 utilized with respect to such acquisition, including a copy of
of acquisitions authorized under subsection 703(a); a description ofany order or pleading in connection with such review that contains a significant
iki/CRS-RL34533 incidents of noncompliance with a directive issued by the AG and the DNIlegal interpretation of the provisions of section 702; any actions taken to
g/w), including both incidents of noncompliance by anchallenge or enforce a directive under paragraph (4) or (5) of section 702(h); any
s.orement of the intelligence community with procedures adopted pursuant tocompliance reviews conducted by the Attorney General or the Director of
leak703(d) and (e) and incidents of noncompliance by a specified personNational Intelligence of acquisitions authorized under subsection 702(a); a
whom the AG and DNI issued a directive under subsection 703(g); and anydescription of any incidents of noncompliance with a directive issued by the AG
://wikiplementing this section.and the DNI under subsection 702(h), including incidents of noncompliance by
httpan element of the intelligence community with procedures and guidelines
adopted pursuant to subsections (d), (e), and (f) of section 702, and incidents of
noncompliance by a specified person to whom the AG and DNI issued a
directive under subsection 702(h); and any procedures implementing section 702.
Requirements for each reporting period with respect to new section 704 — Requirements for each reporting period with respect to new section 703
FISA include: the total number of applications made for orders underof FISA include: Similar provision, the requirements including the total number
ber of such orders either granted, modified, orof applications made for orders under section 703(b); the total number of such
he total number of emergency acquisitions authorized by the AGorders granted, modified, or denied; and the total number of emergency
ber of subsequent orders approving oracquisitions authorized by the AG under section 703(d) and the total number of
ing such acquisitions.subsequent orders approving or denying such acquisitions.
CRS-44
H.R. 3773 — House Amendment to the Senate Amendment
Requirements for each reporting period with respect to new section 705 — Requirements for each reporting period with respect to new section 704
FISA include: the total number of applications made for orders underof FISA include: similar provision, the requirements including the total number
ber of such orders either granted, modified, orof applications made for orders under 704(b); the total number of such orders
ed; and the total number of emergency acquisitions authorized by the AGgranted, modified, or denied; and the total number of emergency acquisitions
ber of subsequent orders approving orauthorized by the AG under subsection 704(d) and the total number of
ing such applications.subsequent orders approving or denying such applications.
ings Provision
ilar provision.New section 708 of FISA would include a savings provision stating that, nothing
iki/CRS-RL34533in new title VII of FISA shall be construed to limit the authority of the federal
g/wgovernment to seek an order or authorization under, or otherwise engage in any
s.oractivity that is authorized under, any other title of FISA.
leak
://wikical and Conforming Amendments to 18 U.S.C. §§ 2232 and 2511
httpended by section 101(c)(1)(A) of the Senate billNo similar provision.
provide that, “[w]hoever, having knowledge that a Federal officer has been
ed or has applied for authorization to conduct electronic surveillance (as
f) of [FISA], regardless of the limitation of section 701
in order to obstruct, impede, or prevent such activity, gives notice or
pts to give notice of the possible activity to any person shall be fined under
.S.C.] or imprisoned not more than five years, or both.” [Emphasis
U.S.C. § 2511(2)(a)(ii)(A) would be amended by section 101(c)(1)(B) of theSimilar provision. 18 U.S.C. § 2511(2)(a)(ii)(A) would be amended by section
nate bill to provide that, “[n]otwithstanding any other law, providers of wire101(c)(1) of the House bill to provide that, “[n]otwithstanding any other law,
munication service, their officers, employees, and agents,providers of wire or electronic communication service, their officers, employees,
CRS-45
H.R. 3773 — House Amendment to the Senate Amendment
e authorized to provide information,and agents, landlords, custodians, or other person, are authorized to provide
or technical assistance to persons authorized by law to intercept wire,information, facilities, or technical assistance to persons authorized by law to
munications tor to conduct electronic surveillance, asintercept wire, oral, or electronic communications tor to conduct electronic
SA], if such provider, its officers, employees, orsurveillance, as defined in section 101 of [FISA], if such provider, its officers,
ents, landlord, custodian, or other specified person, has been provided with aemployees, or agents, landlord, custodian, or other specified person, has been
such assistance or a court order pursuant to section 705 ofprovided with a court order directing such assistance or a court order pursuant
ISA] signed by the authorizing judge.” [Emphasis added.]to section 704 of [FISA] signed by the authorizing judge.” [Emphasis added.]
similar provision.Section 102(c) of the House bill would amend 18 U.S.C. § 2511(2)(a) to add a
iki/CRS-RL34533new subparagraph (iii), providing, “If a certification under subparagraph (ii)(B)for assistance to obtain foreign intelligence information is based on statutory
g/wauthority, the certification shall identify the specific statutory provision, and
s.or
leakshall certify that the statutory requirements have been met.” [Also noted below
under the section entitled “Statement of Exclusive Means by which Electronic
://wikiSurveillance and Interception of Domestic Communications May Be
http Conducted.”]
cal and Conforming Amendments to FISA
Senate bill makes conforming amendments to the table ofSimilar provision.
SA.
SA, 50 U.S.C. § 1809, dealing with criminal sanctions, wouldNo similar provision.
amended to add a definition of “electronic surveillance,” meaning “electronic
eillance as defined in section 101(f) of [FISA] regardless of the limitation
ct.” Section 101(c)(2)(A) of the Senate bill.
SA, 50 U.S.C. § 1810, dealing with civil liability, would beNo similar provision.
CRS-46
H.R. 3773 — House Amendment to the Senate Amendment
ended to add a new definition of “electronic surveillance,” meaning
eillance as defined in section 101(f) of [FISA] regardless of the
itation of section 701 of this Act.” Section 101(c)(2)(B) of the Senate bill.
SA, 50 U.S.C. § 1871(a)(1), dealing with a semiannualSimilar provision. Under section 101(c)(2) of the House bill, section 601(a)(1)
the AG to the congressional intelligence committees and the House andof FISA, 50 U.S.C. § 1871(a)(1), dealing with the AG’s semiannual reports to the
udiciary Committees on the aggregate number of persons targeted forcongressional intelligence committees and the House and Senate Judiciary
SA, would be amended to provide that each report wouldCommittees on the aggregate numbers of persons targeted for orders issued
breakdown of those targeted for electronic surveillance under sectionunder FISA, would be amended to provide that each report would include a
iki/CRS-RL34533sical searches under section 304; pen registers under section 402;ess to records under section 501; acquisitions under section 704; andbreakdown of those targeted for orders issued under FISA would include abreakdown of those targeted for electronic surveillance under section 105 of
g/w [Emphasis added.] Section 101(c)(2)(C) of theFISA; physical searches under section 304 of FISA; pen registers under section
s.or
leaknate bill.402; access to records under section 501; acquisitions under section 703; and
acquisitions under section 704. [Emphasis added.]
://wikirmination of Authority for New Title VII of FISA, Applicable Changes to the FISA Table of Contents, and Certain Technical and
httporming Amendments
e FISA Amendments Act of 2008, new titlePursuant to subsection 403(b) of the House bill, except as provided in the
II of FISA, the applicable changes to the FISA table of contents, and thetransition procedures in section 404 of the House bill, new title VII of FISA
ing amendments to 18 U.S.C. §§ 2232 and 2511 and towould be repealed on December 31, 2009, and the applicable changes to the
SA, 50 U.S.C. §§ 1809, 1810, and 1871,FISA table of contents would be stricken at that time. Also on December 31,
ely, would sunset on December 31, 2013, except for certain transitional2009, except as provided in section 404 of the House bill, the reporting
isions. New subsection 703(g)(3) of FISA, as amended, dealing with releaserequirements in section 601(a)(1) of FISA, 50 U.S.C. § 1871(a)(1), would sunset,
liability for electronic communications service providers in accordanceso that this subsection would read as it read on the day before the date of
ve, would remain in effect with respect to any directive issuedenactment of the bill into law. In addition, as of December 31, 2009, except as
subsection 703(g) of FISA for information, facilities, orprovided in section 404, 18 U.S.C. § 2511(2)(A)(ii)(A) would be amended to
CRS-47
H.R. 3773 — House Amendment to the Senate Amendment
ided during the period the directive was or is in effect. Newstrike “or a court order pursuant to section 704 of [FISA].”
with release from liability for electronic
munication service providers furnishing aid in accordance with an order or
ergency assistance, would remain in effect with respect to an order
ergency assistance under that section. Use of information
an acquisition conducted under new section 703 of FISA would
overned by the provisions of new section 707 of FISA.
atement of Exclusive Means by which Electronic Surveillance and Interception of Domestic Communications May Be Conducted
iki/CRS-RL34533SA Amendment Act of 2008 would add a new section 112Section 102 of the House bill would amend title I of FISA to add a new section
g/w of FISA, providing that, “[t]he procedures of chapters 119, 121, and 206112 at the end of the title, providing:
s.ornited States Code, and [FISA] shall be the exclusive means by
leakich electronic surveillance (as defined in section 101(f), regardless of the(a) Except as provided in subsection (b), the procedures of chapters 119,
://wikiitation of section 701) and the interception of domestic wire, oral, ormunications may be conducted.”121, and 206 of title 18, United States Code, and this Act shall be theexclusive means by which electronic surveillance and the interception of
httpdomestic wire, oral, or electronic communications may be conducted.
(b) Only an express statutory authorization for electronic surveillance or
the interception of domestic wire, oral, or electronic communications, other
than as an amendment to this Act or chapters 119, 121, or 206 of title 18,
United States Code, shall constitute an additional exclusive means for the
purpose of subsection (a).
The table of contents of FISA would be amended to reflect this addition.
CRS-48
H.R. 3773 — House Amendment to the Senate Amendment
orming amendment to 18 U.S.C. § 2511(2)(f): As amended, sectionNo similar provision.
ould provide that, “[n]othing contained in [chapters 119, 121, or 206
title 18, U.S.C.], or section 705 of the Communications Act of 1934, shall be
ed to affect the acquisition by the United States Government of foreign
ence information from international or foreign communications, or
n intelligence activities conducted in accordance with otherwise applicable
deral law involving a foreign electronic communications system, utilizing a
eans other than electronic surveillance as defined in section 101 of [FISA], and
18, U.S.C., and FISA] shall be
iki/CRS-RL34533e exclusive means by which electronic surveillance, (as defined in section
g/wf) of [FISA] regardless of the limitation of section 701 of such Act), and the
s.orronic communications may be conducted.”
leakphasis added.]
://wikiilar provision.Subsection 109(a) of FISA, 50 U.S.C. 1809(a), is amended by subsection 102(b)
httpof the House bill to strike “authorized by statute”’ each place it appears in such
section and inserting “authorized by this Act, chapter 119, 121, or 206 of title 18,
United States Code, or any express statutory authorization that is an additional
exclusive means for conducting electronic surveillance under section 112.” The
amended provision would read:
(a) Prohibited activities
A person is guilty of an offense if he intentionally —
(1) engages in electronic surveillance under color of law except as
authorized by this Act, chapter 119, 121, or 206 of title 18, United
States Code, or any express statutory authorization that is an
additional exclusive means for conducting electronic surveillance
CRS-49
H.R. 3773 — House Amendment to the Senate Amendment
under section 112; or
(2) discloses or uses information obtained under color of law by
electronic surveillance, knowing or having reason to know that the
information was obtained through electronic surveillance not
authorized by this Act, chapter 119, 121, or 206 of title 18, United
States Code, or any express statutory authorization that is an
additional exclusive means for conducting electronic surveillance
under section 112. [Emphasis added.]
iki/CRS-RL34533ilar provision.Conforming amendment to 18 U.S.C. § 2511(2)(a): 18 U.S.C. § 2511(2)(a)
g/wis amended by adding at the end a new subparagraph 2511(2)(a)(iii) providing
s.or
leakthat, if a certification under 18 U.S.C. § 2511(2)(a)(ii)(B) for assistance to obtain
foreign intelligence information is based on statutory authority, the certification
://wikishall identify the specific statutory provision, and shall certify that the statutory
httprequirements have been met.
ttal to Congress of Certain Court Orders under FISA
Senate amendment to H.R. 3773, the FISA Amendment ActSimilar provision.
end subsection 601(a)(5) of FISA, 50 U.S.C. § 1871, to
he AG, in his semi-annual report to the congressional intelligence
mittees and the House and Senate Judiciary Committees, in a manner
ith national security, to include copies of all decisions, orders, or
SC or the FISCR that include significant construction or
of the provisions of FISA. [Emphasis added.] Under current law,
the copies to be provided by the AG under this
CRS-50
H.R. 3773 — House Amendment to the Senate Amendment
addition, section 601 would be amended, adding a new subsection 601(c),Similar provision.
ich would require submission to the congressional intelligence committees
udiciary Committees:
of any decision, order, or opinion issued by the FISC or the FISCR
includes significant construction or interpretation of any provision of FISA,
d any pleadings, applications, or memoranda of law associated with such
iki/CRS-RL34533not later than 45 days after such decision, order, or
g/w
s.or
leak of any such decision, order, or opinion, and any pleadings,
emoranda of law associated with such decision, order, or
://wiking the 5-year period ending on the date of the
httpent of the FISA Amendments Act of 2008 and not previously submitted
of FISA, 50 U.S.C. § 1871(a).
, to authorize redactions of materials disclosed to the congressional
ence committees and the House and Senate Judiciary Committees under
are necessary to protect the national
of the United States and are limited to sensitive sources and methods
ation or the identities of targets.
w subsection 601(e) would define the Foreign Intelligence Surveillance CourtSimilar provision.
CRS-51
H.R. 3773 — House Amendment to the Senate Amendment
SA, while the Foreign
telligence Surveillance Court of Review is defined to mean the court
SA.
endments to Section 104 of FISA Regarding Applications for FISC Orders
the Senate Amendment to H.R. 3773 streamlines to some degreeSection 104 of the Senate Amendment to H.R. 3773 streamlines to some degree
application process under section 104 of FISA, 50 U.S.C. § 1804, for FISCthe application process under section 104 of FISA, 50 U.S.C. § 1804, for FISC
ing electronic surveillances to gather foreign intelligenceorders authorizing electronic surveillances to gather foreign intelligence
ation. information.
iki/CRS-RL34533
g/wt would strike the requirement in subsection 104(a)(2) of FISA that theSimilar provision.
s.or conferred on the AG by the President and the
leakal of the AG; and the requirement in subsection 104(a)(11) of FISA that,
://wikienever more than one electronic, mechanical or other surveillance device isith respect to a particular proposed electronic surveillance, the
httpinclude the coverage of the devices involved and what minimization
to information acquired by each device. Paragraphs 104(a)(3)
h (10) would be renumbered 104(a)(2) through (9).
a description of the nature of the information sought and the type ofSimilar provision.
munications or activities to be subjected to the surveillance would be
the description would no longer be
quired to be detailed under new subsection 104(a)(5) (current subsection
certifications to be made under new subsection 104(a)(6)No similar provision.
CRS-52
H.R. 3773 — House Amendment to the Senate Amendment
ade by the Assistant to the President
ational Security Affairs or an executive branch official or officials
nated by the President from among those executive officers employed in the
or defense and appointed by the President with the
ice and consent of the Senate, or the Deputy Director of the FBI, if
. [Emphasis added.]
Similar provision.
plication would require a summary statement of the means by which the
iki/CRS-RL34533eillance will be effected and a statement whether physical entry is required
g/weillance.
s.or
leakhe Senate amendment to H.R. 3773 would strike current subsection 104(b),Similar provision.
application requirements certain information where the
://wikiet of the electronic surveillance is a foreign power as defined in subsection
httpSA, and each of the facilities or places at which the
eillance is directed is owned, leased, or exclusively used by that foreign
) of FISA define “foreign power” to
n government or any component thereof, whether or not
nized by the United States; a faction of a foreign nation or nations, not
composed of United States persons; or an entity that is openly
nowledged by a foreign government or governments to be directed and
by such foreign government or governments. Under current
involving such foreign power targets shall state
ether physical entry is required to effect the surveillance and shall contain
information about the surveillance techniques and communications or other
CRS-53
H.R. 3773 — House Amendment to the Senate Amendment
ation concerning United States persons likely to be obtained as may be
to assess the proposed minimization procedures.
itten request of the Director of the FBI, the Secretary of Defense, the Secretary
State, the DNI, or the Director of the Central Intelligence Agency, the AG
sonally review under subsection 104(a) an application under that
et described in subsection 101(b)(2) of FISA. Subsection
ories of individuals falling within the definition of
iki/CRS-RL34533ent of a foreign power” under FISA that include “any person,” including a
g/w
s.or
leak
://wikiendments to Section 105 of FISA Regarding Issuance of an Order Authorizing Electronic Surveillance
httpersion of H.R. 3773 would strike the requirement inSimilar provision in section 105 of the House amendment to the Senate
SC judge, in issuing an order authorizing electronicamendment to H.R. 3773.
eillance to gather foreign intelligence information under section 105 of
SA, 50 U.S.C. § 1805, find that the President has authorized the Attorney
neral to approve applications for electronic surveillance for foreign
ence information. Paragraphs 105(a)(2) through (5) are redesignated (1)
h (4), respectively, and a conforming amendment is made to subsection
he Senate bill would strike subsection 105(c)(1)(F) of FISA, whichSimilar provision.
requires that, whenever more than one electronic, mechanical, or other
CRS-54
H.R. 3773 — House Amendment to the Senate Amendment
eillance device is to be used under the order, the specifications in the order
ed coverage of the devices involved and what minimization
to information subject to acquisition by each device.
Current subsection 105(d) of FISA would also be stricken from the Act.Similar provision.
excludes certain information from a FISC order whenever
et of the electronic surveillance is a foreign power, as defined in
1801(a)(1), (2), or (3) of this title, and each of the facilities or places
hich the surveillance is directed is owned, leased, or exclusively used by that
iki/CRS-RL34533reign power. Current subsection 105(d) of FISA also requires that a FISC
g/wolving such foreign targets generally describe the information sought,
s.orcommunications or activities to be subjected to the surveillance, and the type
leakeillance involved, including whether physical entry is required.
rrent subsections 105(e) through (i) would be redesignated (d) through (h),
://wikiely.
http
S.C. § 1805(e)(1)-(6) (formerly subsection 105(f) as redesignated by section
the bill): Emergency authorization of electronic surveillance:
twithstanding any other provision of this title, the AG may authorize the
ergency employment of electronic surveillance for up to 168 hours while a
SC order authorizing the surveillance is sought, if statutory criteria are met:
ent that the AG reasonably determine that anSimilar provision.
ergency situation exists with respect to the employment of electronic
eillance to obtain foreign intelligence information before an order
ing such surveillance can with due diligence be obtained;
CRS-55
H.R. 3773 — House Amendment to the Senate Amendment
G must also reasonably determine that the factual basis for issuance ofSimilar provision.
of FISA to approve such electronic surveillance exists;
the AG must inform, either personally or through a designee, a judge havingSimilar provision.
risdiction under section 103 of FISA at the time of such authorization that the
ade to employ emergency electronic surveillance; and
the AG must make a section 104 application to a FISC judge as soon asSimilar provision.
but not later than 7 days after the Attorney General authorizes such
iki/CRS-RL34533eillance.
g/w
s.orf the AG authorizes such emergency employment of electronic surveillanceSimilar provision.
leaker redesignated paragraph 105(e)(1), he shall require that the minimization
required by this title for the issuance of a judicial order be followed.
://wiki
http
fect of absence of judicial order approving such electronic surveillance:Similar provision.
the absence of a judicial order approving such electronic surveillance, the
eillance shall terminate when the information sought is obtained, when the
for the order is denied, or after the expiration of 7 days from the time
ation by the Attorney General, whichever is earliest.
mitations on use of information from surveillance if application denied orSimilar provision.
rveillance terminated without issuance of a court order approving it: If
an application is denied or the electronic surveillance is terminated and no
approving the surveillance, no information obtained or evidence
CRS-56
H.R. 3773 — House Amendment to the Senate Amendment
ed from such surveillance shall be received in evidence or otherwise
trial, hearing, or other proceeding in or before any authority of
e United States, a State, or political subdivision thereof, and no information
any U.S. person acquired from such surveillance shall subsequently
d in any other manner by federal officers or employees
thout the consent of such person, except with the approval of the AG if the
ation indicates a threat of death or serious bodily harm to any person. The
shall assess compliance with these requirements.
iki/CRS-RL34533 the bill, amending section 105 of FISA to add a newSimilar provision.
g/wng pen registers and trap and trace
s.orvices, at applicant’s request, to orders approving electronic surveillance:
leake new subsection 105(i) of FISA would provide that, “[i]n any case in which
overnment makes an application to a judge under this title to conduct
://wikiectronic surveillance involving communications and the judge grants such
httpt, the judge shall also authorize the
pen registers and trap and trace devices, and direct the
ation set forth in section 402(d)(2) [of FISA].” The
ation set forth in subsection 402(d)(2) includes the identity, if known, of
et of the investigation; the identity, if known, of the person to whom the
line or other facility to which the pen register or trap and trace device is
be attached or applied is leased or in whose name it is listed; the attributes of
munications to which the order applies.
CRS-57
H.R. 3773 — House Amendment to the Senate Amendment
endment to Section 106 of FISA Regarding Use of Information Gathered Under a Section 105 FISC Order
subsection 106(i), as amended by the Senate amendment to H.R. 3773, inSimilar provision in section 106 of the House bill.
stances involving the unintentional acquisition by an electronic,
echanical, or other surveillance device of the contents of any communication,
stances in which a person has a reasonable expectation of privacy
w enforcement purposes, and if both the
ts are located within the United States, such
ed upon recognition, unless the Attorney General
iki/CRS-RL34533ines that the contents indicate a threat of death or serious bodily harm to person. [Emphasis added. Current subsection 106(i) addresses the
g/wacquisition of the contents of “any radio communication” instead
s.or
leak communication.”] Section 106 of the Senate bill.
://wikiendments to Sections 303, 304, and 305 of FISA Regarding Physical Searches
http FISA, 50 U.S.C. § 1823, regardingAmendments to section 303 of FISA, 50 U.S.C. § 1823, regarding
ications for FISC orders authorizing physical searches: Section 107 ofapplications for FISC orders authorizing physical searches: Section 107 of
ersion of H.R. 3773 would amend section 303 of FISA, dealing withthe House amendment to the Senate amendment to H.R. 3773 would amend
tions for orders authorizing physical searches to gather foreignsection 303 of FISA, dealing with applications for orders authorizing physical
ence information. searches to gather foreign intelligence information.
ould eliminate the requirement that such applications include theSimilar provision.
conferred on the Attorney General by the President and the approval
General to make the application, striking paragraph 303(a)(2) of
SA and redesignating paragraphs 3 through 9 as 2 through 8.
CRS-58
H.R. 3773 — House Amendment to the Senate Amendment
ould require that such applications include the identity, if known, or a
scription of the target of the search, and a description of the premises or
to be searched and of the information, material, or property to be seized,
or altered. Current law requires that the description of the premises
property to be searched and of the information, material or property to be
ed, reproduced, or altered be a detailed description.
Under new subsection 303(a)(3)(C) of FISA (current subsectionSimilar provision.
iki/CRS-RL34533ust include “a statement of the facts and
g/wstances relied upon by the applicant to justify the applicant’s belief that
s.orises or property to be searched is owned, used, possessed by, or is
leaktransit to or from a foreign power or an agent of a foreign power.” As
ended by the Senate bill, an application would have to include “a statement
://wiki the facts and circumstances relied upon by the applicant to justify the
httpbelief that . . . the premises or property to be searched is or is about
owned, used, possessed by, or is in transit to or from a foreign power or an
ent of a foreign power.” [Emphasis added.]
new subsection 303(a)(6) of FISA (current subsection 303(a)(7)), anNo similar provision.
ust include a certification or certifications by the Assistant to the
esident for National Security Affairs or an executive branch official or officials
nated by the President from among those executive branch officers
ployed in the area of national security or defense and appointed by the
nt, by and with the advice and consent of the Senate, or the Deputy
rector of the FBI, if designated by the President as a certifying official.
CRS-59
H.R. 3773 — House Amendment to the Senate Amendment
phasis added.]
nder subsection 303(d)(1)(A), as amended by the bill, upon written requestSimilar provision.
the Federal Bureau of Investigation, the Secretary of Defense,
ecretary of State, the Director of National Intelligence, or the Director of
entral Intelligence Agency, the Attorney General shall personally review
SA an application under that subsection for a target
ubsection 101(b)(2) of FISA. Subsection 101(b)(2) lists those
ories of individuals falling within the definition of “agent of a foreign
iki/CRS-RL34533SA that include “any person,” including a U.S. person.
g/wphasis added.]
s.or
leakments to section 304 of FISA, 50 U.S.C. § 1824, regarding FISCAmendments to section 304 of FISA, 50 U.S.C. § 1824, regarding FISC
ing physical searches: Subsection 107(b) of the bill makesorders authorizing physical searches: Subsection 107(b) of the bill makes
://wikiendments to section 304 of FISA, dealing with physical searches to gatheramendments to section 304 of FISA, dealing with physical searches to gather
httpn intelligence information. foreign intelligence information.
SA, as amended by subsection 107(b) of the bill, wouldSimilar provision.
inate the requirement that a FISC judge, in issuing an order for a physical
SA, find that the President has authorized the Attorney General
approve applications for physical searches for foreign intelligence purposes,
ing paragraph (a)(1) and redesignating paragraphs (a)(2) through (a)(5) as
h (a)(6).
ergency authorization of physical searches to gather foreign intelligenceSimilar provision.
formation: Subsection 304(e), as amended by the bill, permits the AG to
e emergency employment of a physical search if certain criteria are met.
CRS-60
H.R. 3773 — House Amendment to the Senate Amendment
e AG may authorize such emergency use of a physical search under FISA, if
:
ines that an emergency situation exists with respect to the employmentSimilar but not identical provision. The House bill requires that this
sical search to obtain foreign intelligence information before an orderdetermination be reasonable.
ing such physical search can with due diligence be obtained;
determines that the factual basis exists for issuance of an order under title IIISimilar but not identical provision. The House bill requires that this
SA to approve such physical search;determination be reasonable.
iki/CRS-RL34533
g/winforms, either personally or through a designee, a judge of the FISC at theSimilar provision.
s.ore of such authorization that the decision has been made to employ an
leakergency physical search; and
://wikiakes an application in accordance with title III of FISA to a judge of theSimilar provision.
httpSC as soon as practicable within 7 days after the AG authorizes the physical
ation procedures required: In connection with such an emergencySimilar provision.
ation of a physical search under FISA, the AG shall require that the
inimization procedures required by title III of FISA for the issuance of a
emergency physical search in absence of judicial approval:Similar provision.
udicial order approving such physical search is forthcoming, the search
ust be terminated when the information sought is obtained, when the
CRS-61
H.R. 3773 — House Amendment to the Senate Amendment
or after the expiration of 7 days from the time
ation by the AG, whichever is earliest.
rom denial of application for court order approving emergencySimilar provision.
If an application for judicial approval of such a search is
the government may seek review by the FISCR. If the denial is affirmed
the FISCR, the government may file a petition for certiorari to the U.S.
e Court.
iki/CRS-RL34533 information from emergency physical search inSimilar provision.
g/w judicial approval: If an application for judicial approval is denied,
s.or other case where the physical search is terminated and no order is
leaking the physical search, no information obtained or evidence
ed from such physical search shall be received in evidence or otherwise
://wiki federal, state, or local proceeding, and no information
http a U.S. person acquired from the physical search shall subsequently
other manner by federal officers or employees
ch person, except with the approval of the AG if the
ation indicates a threat of death or serious bodily harm to any person.
e AG must assess compliance with these requirements.Similar provision.
nforming Amendments to Title III of FISA
akes conforming amendments to sectionSimilar provision.
designated 304(a)(4), and 305(k)(2) of FISA. In subsection 304(a)(4), as
nated, “303(a)(7)(E)” is stricken and “303(a)(6)(E)” is inserted in its
CRS-62
H.R. 3773 — House Amendment to the Senate Amendment
n subsection 305(k)(2), “303(a)(7)” is stricken and “303(a)(6)” is
endments to Title IV of FISA for Emergency Pen Registers and Trap and Trace Devices
its the AG to
e emergency authorization of a pen register or trap and trace device on
ergency basis to gather foreign intelligence information not concerning a
iki/CRS-RL34533ation to protect against international terrorism or
g/wence activities, provided that such investigation of a U.S.
s.orsolely upon the basis of activities protected by the first
leakendment to the Constitution if two criteria are met. At the time of the
://wikiergency authorization, the AG or his designee must advise a FISC judge, oristrate Judge publicly designated by the Chief Justice of the Supreme
http behalf of a FISC judge to approve the installation and use of a
ister or trap and trace device under FISA, of the emergency authorization.
ended, subsection 403(a)(2), extends the time from 48 hours to 7 days after
ergency authorization as the time period within which an application may
ade to such a FISC judge or U.S. Magistrate Judge, in accordance with
SA, 50 U.S.C. § 1842, for judicial approval of the installation
ister or trap and trace device involved.
amended, subsection 403(c)(1)(C) of FISA would require that, in the absenceSimilar provision.
a court order approving the installation and use of the pen register or trap and
ice, such installation and use shall terminate at the earlier of when the
CRS-63
H.R. 3773 — House Amendment to the Senate Amendment
ation sought is obtained; when the application for the order is denied
r section 402 of FISA; or 7 days after the time of the emergency
ation by the AG.
endments Regarding the FISC
the bill, amending section 103(a) of FISA: Section 109 of the bill, amending section 103(a) of FISA:
pansion of number of judicial circuits from which FISC judges may beSimilar provision.
Subsection 109(a) of the bill amends subsection 103(a) of FISA, 50
iki/CRS-RL34533it FISC judges to be drawn from “at least” seven of the
g/wudicial circuits.
s.or
leakSC en banc authority: As amended by subsection 109(b)(1) of the bill,Similar provision.
://wikiFISA provides that the FISC may, on its own initiative, orovernment in any proceeding or a party under
httpSA or new subsection 703(h)(4) or (5) of FISA, hold a
or rehearing en banc, when ordered by a majority of the FISC judges
ination that en banc consideration is necessary to secure or
aintain uniformity of the court’s decisions; or the proceeding involves a
estion of exceptional importance. The court en banc may exercise any
granted by FISA to an FISC judge, and must comply with any
ents of FISA on the exercise of such authority.
orming amendments: Subsection 109(b)(2) of the bill makes conformingSimilar provision.
endments to subsection 103(a) of FISA, 50 U.S.C. § 1803(a), and subsection
SA, 50 U.S.C. § 1833(c).
CRS-64
H.R. 3773 — House Amendment to the Senate Amendment
ication of a FISC or FISCR order during a rehearing or anSimilar provision.
Subsection 109(c) of the bill amends section 103 of FISA to redesignate
bsection (f) as subsection (g) and to insert a new subsection (f) permitting a
e of the FISC, the FISCR or a judge of that court, or the U.S. Supreme Court
ustice of that court, to, in accordance with the rules of their respective
of an order or an order modifying an order of the FISC or the
SCR entered under any title of FISA, while the FISC conducts a rehearing,
ile an appeal is pending before the FISCR, or while a petition of certiorari is
nding in the U.S. Supreme Court, or during the pendency of any review by
iki/CRS-RL34533his authority is to apply to an order entered under any FISA
g/wision.
s.or
leak change to inherent authority of FISC: Subsection 109(d) of the bill wouldSimilar provision.
a new subsection 103(h) to FISA, proposed 50 U.S.C. § 1803(h), to provide
://wiki in FISA shall be considered to reduce or contravene the inherent
http of the FISC to determine, or enforce, compliance with an order or rule
SC or with a procedure approved by the FISC.
used in this subsection, the bill defines “Foreign Intelligence SurveillanceNo similar provision.
ean the court established in subsection 103(a) of FISA.
spector General Review of Previous Actions
ilar provision.Definitions: Section 110(a) of the House bill would add new definitions for
purposes of this section of “appropriate committees of Congress,” “Foreign
Intelligence Surveillance Court,” and “President’s Surveillance Program” and
“Program.” The “appropriate committees of Congress” means the House
CRS-65
H.R. 3773 — House Amendment to the Senate Amendment
Permanent Select Committee on Intelligence, the Senate Select Committee on
Intelligence and the House and Senate Judiciary Committees. The “Foreign
Intelligence Surveillance Court” means the court created under subsection 103(a)
of FISA. Both the terms “President’s Surveillance Program” and “Program”
mean the “intelligence activity involving communications that was authorized
by the President during the period beginning on September 11, 2001, and ending
on January 17, 2007, including the program referred to in a radio address on
December 17, 2005 (commonly known as the Terrorist Surveillance Program).”
(hereinafter TSP).
iki/CRS-RL34533ilar provision.Reviews: Section 110(b) of the House bill would require the Inspectors General
g/w(IGs) of the USDOJ, the Office of the DNI (“ODNI”), the NSA, and any other
s.or
leakelement of the intelligence community that participated in the TSP, with respect
to the oversight authority and responsibility of each such IG, to complete a
://wikicomprehensive review of all of the facts necessary to describe the establishment,
httpimplementation, product, and use of the product of the TSP; the procedures and
substance of, and access to, the legal reviews of the TSP; communications with
and participation of individuals and entities in the private sector related to the
TSP; interaction with the FISC and transition to court orders related to the TSP;
and any other matters identified by any such IG that would enable that IG to
complete a review of the TSP, with respect to such Department or element.
ilar provision.Coordination and Cooperation: Subsection 110(b) of the House bill also
requires each IG required to conduct such a review, to the extent practicable, to
work in conjunction with any other IG required to conduct such a review; and,
to the extent practicable, to utilize and not unnecessarily duplicate or delay such
review or audits that have been completed or are being undertaken by any such
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H.R. 3773 — House Amendment to the Senate Amendment
IG or any other office of the Executive Branch with respect to the TSP. In
addition, it requires the IGs to designate one of their number, who is appointed
by the President with the advice and consent of the Senate, to coordinate the
conduct of the reviews and the preparation of the reports.
ilar provision.Reports: Within 60 days after enactment of the bill, subsection 110(c) of the
House bill requires these IGs to submit a preliminary interim report to the
appropriate committees of Congress that describes the planned scope of the
review. Within 1 year of the date of enactment of the bill, the IGs would have
iki/CRS-RL34533to submit the final report to the appropriate committees of Congress and to theCommission on Warrantless Surveillance Activities created under section 301
g/wof the House bill. A report submitted under subsection 110(c) of the House bill
s.or
leakis to be submitted in an unclassified form but may include a classified annex.
The unclassified report is not to disclose the name or identity of any individual
://wikior entity of the private sector that participated in the TSP, or with whom there
httpwas communication about the TSP, to the extent that information is classified.
ilar provision.Resources: Subsection 110(d) of the House bill would require the DNI to ensure
that the process for the investigation and adjudication of an application by an IG
or any appropriate staff of an IG for a security clearance necessary to conduct a
review under subsection 110(b)(1) of the bill is carried out as expeditiously as
possible. In addition, the bill authorizes the IGs required to conduct such a
review and submit such a report to hire such additional personnel as may be
necessary to carry out the review and submit the report in a prompt and timely
manner. Such personnel would perform such duties relating to the review as the
relevant IG shall direct and would be in addition to any other personnel
authorized by law.
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H.R. 3773 — House Amendment to the Senate Amendment
Mass Destruction
finitions: Subsection 110(a) of the bill would amend the definitions ofDefinitions: Subsection 111(a) of the House bill would amend the definitions
n power,” “ agent of a foreign power,” and “foreign intelligenceof “foreign power,” “agent of a foreign power,” and “foreign intelligence
ation” in section 101 of FISA, 50 U.S.C. § 1801, to address internationalinformation” in section 101 of FISA, 50 U.S.C. § 1801, to address international
eapons of mass destruction, and would add a new definition ofproliferation of weapons of mass destruction, and would add a new definition of
ass destruction” to section 101 of FISA, 50 U.S.C. § 1801. “weapon of mass destruction” to section 101 of FISA, 50 U.S.C. § 1801.
oreign power” as defined in subsection 101(a)(4) of FISA, 50 U.S.C. §“Foreign power” as defined in subsection 101(a) of FISA would be amended
iki/CRS-RL34533ended by section 110 of the bill, would include a groupaged in international terrorism, the international proliferation of weapons ofto add a new subsection 101(a)(7) defining the term to mean “an entity notsubstantially composed of United States persons that is engaged in the
g/wss destruction, or activities in preparation therefor.” [Emphasis added.]international proliferation of weapons of mass destruction.”
s.or
leak
gent of a foreign power” under subsection 101(b)(1) of FISA, 50 U.S.C. §“Agent of a foreign power” under subsection 101(b)(1) of FISA, 50 U.S.C. §
://wikiould be amended by the bill to add new subparagraphs (D) and (E).1801(b)(1) would be amended to add a new subparagraph (D), which appears to
httption of weapons of mass destruction: create a “lone wolf” provision applicable to any person other than a U.S. person
who “engages in international proliferation of weapons of mass destruction, or
tion 101(b)(1)(D) appears to create a “lone wolf” provisionactivities in preparation therefor,” similar to the “lone wolf” provision in
person other than a U.S. person who “engages in internationalsubsection 101(b)(1)(C) applicable to a non-U.S. person who engages in
mass destruction, or activities in preparationinternational terrorism or activities in preparation therefor. Neither requires the
ilar to the “lone wolf” provision in subsection 101(b)(1)(C)“agent of a foreign power” involved to have any connection with a foreign power
plicable to a non-U.S. person who engages in international terrorism oror to act for or on behalf of a foreign power.
ities in preparation therefor. Neither requires the “agent of a foreign power”
olved to have any connection with a foreign power or to act for or on behalf
n power.
subsection 101(b)(1)(E) defines “agent of a foreign power” to includeNo similar provision.
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H.R. 3773 — House Amendment to the Senate Amendment
y person other than a U.S. person who “engages in the international
eapons of mass destruction, or activities in preparation therefor,
n power.” This provision differs from its counterpart
which defines “agent of a foreign power” to include
who “engages in international terrorism or activities in preparation
for or on behalf of a foreign power.” [Emphasis added.] Thus, the new
ision in subsection 101(b)(1)(E) would apply only to non-U.S. persons,
nition in subsection 101(b)(2)(C) covers both U.S. persons and
U.S. persons.
iki/CRS-RL34533
g/w intelligence information,” as defined in subsection 101(e)(1)(B) ofSimilar provision.
s.orSA, 50 U.S.C. § 1801(e)(1)(B), would be amended by the bill to include
leakation that relates to, and if concerning a United States person is necessary
of the United States to protect against . . . sabotage, international
://wiki, or the international proliferation of weapons of mass destruction by
httpn power or an agent of a foreign power; . . . .”
mass destruction” would be defined in new subsection 101(p) of“Weapon of mass destruction” would be defined in new subsection 101(p) of
SA, proposed 50 U.S.C. § 1801(p), to mean “any destructive device describedFISA, proposed 50 U.S.C. § 1801(p), to mean “ any explosive, incendiary, or
section 921(a)(4)(A) of title 18, United States Code, that is intended or has thepoison gas device that is intended or has the capability to cause a mass casualty
to cause death or serious bodily injury to a significant number ofincident;” “any weapon that is designed or intended to cause death or serious
any weapon that is designed or intended to cause death or seriousbodily injury to a significant number of persons through the release,
injury through the release, dissemination, or impact of toxic or poisonousdissemination, or impact of toxic or poisonous chemicals or their precursors;”
icals or their precursors;” “any weapon involving a biological agent, toxin,“any weapon involving a biological agent, toxin, or vector (as such terms are
ector (as such terms are defined in section 178 of title 18, United Statesdefined in section 178 of title 18, United States Code) that is designed, intended,
weapon that is designed to release radiation or radioactivity ator has the capability of causing death, illness, or serious bodily injury to a
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H.R. 3773 — House Amendment to the Senate Amendment
el dangerous to human life.”significant number of persons;” or “ any weapon that is designed, intended, or
has the capability of releasing radiation or radioactivity causing death, illness,
or serious bodily injury to a significant number of persons.”
information: Subsection 110(b) of the bill would amend subsectionsSimilar provision.
)(1)(B) and 305(k)(1)(B) of FISA, 50 U.S.C. §§ 1806(k)(1)(B) and
)(1)(B), to permit federal officers who conduct electronic surveillance
sical searches to acquire foreign intelligence information under FISA to
ent officers or law enforcement personnel of
iki/CRS-RL34533ision of a state (including the chief executive officer ofstate or political subdivision who has the authority to appoint or direct the
g/w enforcement officer of that state or political subdivision) to coordinate
s.or
leakto investigate or protect against sabotage, international terrorism, or the
eapons of mass destruction by a foreign power
://wikient of a foreign power. [Emphasis added.]
httping amendment to the definitions applicable to physicalSimilar provision.
SA: Subsection 110(c) of the bill would amend subsection
SA to read, “(1) The terms ‘foreign power’, ‘agent of a foreign
er’, ‘international terrorism’, ‘sabotage’, ‘foreign intelligence information’,
ttorney General’, ‘United States person’, ‘United States’, ‘person’, ‘weapon
and ‘State’ shall have the same meanings as in section 101
SA, 50 U.S.C. § 1801], except as specifically provided by this title
.S.C.].” [Emphasis added.]
CRS-70
H.R. 3773 — House Amendment to the Senate Amendment
cal and Conforming Amendments to Section 103 of FISA
ction 111 of the bill makes technical and conforming amendments toSimilar provision, section 403(a)(1)(B)(ii), striking “105B(h) or 501(f)(1)” and
on 103(e) of FISA. As amended, the section would address theinserting “501(f)(1) or 702(h)(4)” in section 103(e) of FISA.
risdiction of the FISC petition review pool over petitions filed pursuant to
SA, and publication of rules of procedure to
vern its review of such petitions. This replaces language reflecting the
ent of P.L. 110-55 on August 5, 2007, which referred to petitions filed
ions 105B(h) and 501(f)(1)” of FISA. Section 105B is among the
iki/CRS-RL34533ons to be repealed by Subsection 302(b) of the Senate amendment to the
g/w
s.oratute of Limitations
leak
://wiki similar provision.Section 112 of the House bill would amend section 109 of FISA, 50 U.S.C. §1809, to add a 10 year statute of limitations, which would be applicable “to any
httpoffense committed before the date of enactment of [the bill] if the statute of
limitations applicable to that offense has not run as of such date.”
ections for Electronic Communication Service Providers
tle II of the Senate bill deals with both retrospective and prospectiveTitle II of the House bill deals with protection of persons assisting the
or electronic communication service providers furnishing aidgovernment.
e government.
ides pertinent definitions. In one such definition, theSection 201 of the House bill addresses statutory defenses. It adds a new title
“covered civil action” is defined to mean a civil action filed in federal orVIII to FISA dealing with protection of persons assisting the government. New
es that an electronic communication service providersection 801 of FISA provides the definitions to be used in connection with new
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H.R. 3773 — House Amendment to the Senate Amendment
ent of the intelligence community; and seekstitle VIII of FISA. Under the House bill, the term “covered civil action” is
onetary or other relief from the electronic communication service providerdefined to mean a suit in federal or state court against any person for providing
ision of such assistance. Other definitions are provided for theassistance to an element of the intelligence community. The House bill has a
s “assistance,” “contents,” “electronic communication service provider,” anddefinition of “intelligence community,” but no definition of “element of the
ent of the intelligence community.” The House bill has no parallel to theintelligence community.” The House bill also defines “Attorney General” as
inition of “element of the intelligence community,” but does definehaving the same meaning as that term is given in section 101(g) of FISA.
ence community.” See also definitions in new title VIII of FISA as“State” is defined to mean any state, political subdivision of a state, the
section 203 of the Senate bill.Commonwealth of Puerto Rico, the District of Columbia, and nay territory of
possession of the United States, and includes any officer, public utility
iki/CRS-RL34533commission , or other body authorized to regulate an electronic communication
g/wservice provider.” The definitions of “assistance,” “contents,” and “electronic
s.orcommunication service provider” are identical to those in the Senate bill. The
leakdefinitions in new section 801 of FISA as added by section 201 of the House bill
parallel those in new title VIII of FISA as added by section 203 of the Senate
://wiki bill.
http
the bill, limitations on civil actions against electronic service
twithstanding any other provision of law, subsection 202(a) of the bill bars aNo similar provision. But see, new section 802 to FISA, as added by section 201
vered civil action in a federal or state court, and requires that such an actionof the House bill, addressing procedures for covered civil actions, discussed
ust be promptly dismissed, if the AG certifies to the court that the assistancebelow.
ed to have been provided by the electronic communication service provider
s:
ith an intelligence activity involving communications thatNo similar provision. But see, new section 802 of FISA, addressed below,
s authorized by the President during the period beginning on September 11,entitled “Procedures for Covered Civil Actions.” [New section 802, in part,
CRS-72
H.R. 3773 — House Amendment to the Senate Amendment
on January 17, 2007; and designed to detect or prevent aprovides authority for the government to intervene in any covered civil action;
attack, or activities in preparation for a terrorist attack, against thefor any party to submit to the court evidence, briefs, arguments, or other
ited States; andinformation on any matter with respect to which a state secrets privilege has been
asserted; authorizes the court to review any such submissions in accordance with
procedures set forth in section 106(f) of FISA; and permits the court, on motion
of the AG, to take additional steps to protect classified information; and permits
the court, to the extent practicable and consistent with national security, to
request any party to present briefs and arguments on any legal question the
courts finds raised by such submission, regardless of whether that party has
iki/CRS-RL34533access to the submission.] Under new subsection 802(e) of FISA, for any
g/wcovered civil action alleging that a person provided assistance to an element of
s.orthe intelligence community pursuant to a request or directive during the period
leakfrom September 11, 2001 through January 17, 2007, the AG shall provide to the
court any request or directive related to the allegations under the procedures set
://wikiforth in new subsection 802(b). See below for a discussion of new section 802
httpof FISA, including the procedures under new subsection 802(b).
described in a written request or directive from the AG or the head of anNo similar provision.
ement of the intelligence community (or the deputy of such person) to the
ectronic communication service provider indicating that the activity was
ed by the President and determined to be lawful.
ered civil action in federal or state court would also be barred and shouldNo similar provision.
ptly dismissed if the AG certifies to the court that the electronic
munication service provider did not provide the alleged assistance.
CRS-73
H.R. 3773 — House Amendment to the Senate Amendment
of such certifications:
andard of review: Such a certification is to be subject to review by a courtNo similar provision.
ocedure for review, limitations on disclosure: If the AG files a declarationNo similar provision.
§ 1746 that disclosure of a certification made under subsection
ould harm United States national security, the court shall
iew the certification in camera and ex parte, and limit public disclosure
iki/CRS-RL34533 such certification, including any public order following such ex parte
g/wiew, to a statement that the conditions of subsection 202(a) of the bill have
s.ormet, without disclosing the subparagraph of subsection 202(a)(1) that is the
leak
://wikie authorities of the AG under section 202 are to be performed by the AG orNo similar provision.
httpcting AG, or a designee in a position not lower than the Deputy AG.
thing in this shall be construed to limit any otherwise available immunity,No similar provision.
ilege, or defense under any other provision.
A civil action brought in state court againstCivil action in State court removal: Under new section 802 of FISA, a covered
iding assistance to an element of the intelligence community iscivil action (defined to mean to mean a suit in federal or state court against any
be deemed to arise under the Constitution and laws of the United States andperson for providing assistance to an element of the intelligence community)
ovable under 28 U.S.C. § 1441.that is brought in a state court shall be deemed to arise under the Constitution
and laws of the United States and shall be removable under 28 U.S.C. § 1441.
See below for more discussion of new section 802 of FISA.
CRS-74
H.R. 3773 — House Amendment to the Senate Amendment
fective date and application of section 202 of the Senate bill: This sectionApplicability of new section 802 of FISA as added by section 201 of the
covered civil action pending on or filed after the date of enactmentHouse bill: This section shall apply to a civil action pending on or filed after the
SA Amendments Act of 2008.date of the enactment of the House bill. See below for more discussion of new
section 802 of FISA.
ection of Persons Assisting the Government
the bill provides procedures for implementing statutorySection 201 of the House bill provides procedures for implementing
enses under FISA. It adds a new title VIII of FISA entitled “Protectionstatutory defenses under FISA. It adds a new title VIII of FISA entitled
Persons Assisting the Government”: “Protection of Persons Assisting the Government”:
iki/CRS-RL34533
g/w section 801 of FISA, pertinent definitions. For purposes of new title VIIINew section 801 of FISA, pertinent definitions. Under section 201 of the
s.orSA, new section 801 defines the following terms:House bill, for purposes of new title VIII of FISA, new section 801 defines the
leaksame terms as those defined in new section 801 of FISA under the Senate bill.
://wiki “Assistance” is defined to mean provision of, or provision of access to,Similar provision.
httpation (including communication contents, communications records, or
ation relating to a customer or communication), facilities, or other
of assistance.
ttorney General” and “contents” have the same meanings as those termsSimilar provision.
e under subsections 101(g) and 101(n) of FISA, respectively.
munication service provider” means:Similar provision.
— (A) a telecommunications carrier, as that term is defined in section 3 of
the Communications Act of 1934 (47 U.S.C. 153);
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H.R. 3773 — House Amendment to the Senate Amendment
— (B) a provider of electronic communication service, as that term is
defined in section 2510 of title 18, United States Code;
— (C) a provider of a remote computing service, as that term is defined in
section 2711 of title 18, United States Code;
— (D) any other communication service provider who has access to wire
or electronic communications either as such communications are
transmitted or as such communications are stored;
— (E) a parent, subsidiary, affiliate, successor, or assignee of an entity
described in subparagraph (A), (B), (C), or (D); or
iki/CRS-RL34533 — (F) an officer, employee, or agent of an entity described in
g/wsubparagraph (A), (B), (C), (D), or (E).
s.or
leaklement of the intelligence community” is defined to mean an element ofSimilar provision.
intelligence community as specified or designated under subsection 3(4) of
://wiki Act of 1947, 50 U.S.C. 401a(4).
http
ean:Similar provision.
— (A) an electronic communication service provider; or
— (B) a landlord, custodian, or other person who may be authorized or
required to furnish assistance pursuant to —
— (i) an order of the court established under section 103(a) directing
such assistance;
— (ii) a certification in writing under section 2511(2)(a)(ii)(B) or
2709(b) of title 18, United States Code; or
— (iii) a directive under section 102(a)(4), 105B(e), as in effect on
the day before the date of the enactment of the FISA Amendments
CRS-76
H.R. 3773 — House Amendment to the Senate Amendment
Act of 2008 or 703(h).
“State” is defined to mean any state, political subdivision of a state, theSimilar provision.
mmonwealth of Puerto Rico, the District of Columbia, and any territory or
ited States, and includes any officer, public utility
mission, or other body authorized to regulate an electronic communication
ice provider.
section 802 of FISA, procedures for implementing statutory defenses:New section 802 of FISA, procedures for covered civil actions:
iki/CRS-RL34533mitation on civil actions, required AG certification: Notwithstanding anyNo similar provision.
g/wprovision of law, this section bars any civil action in federal or state court
s.or
leakainst any person for providing assistance to an element of the intelligence
munity if the AG certifies:
://wiki assistance provided by that person was provided pursuant to an FISC
http
that any assistance by that person was provided pursuant to a certification in
iting under 18 U.S.C. §§ 2511(2)(a)(ii)(B) or 2709(a);
assistance by that person was provided pursuant to a directive under
(e) as in effect the day before enactment of the bill, or
SA directing such assistance; or
ide the alleged assistance.
of such certifications:No similar provision.
andard of review: Such a certification is to be subject to review by a court forNo similar provision.
CRS-77
H.R. 3773 — House Amendment to the Senate Amendment
ocedure for review, limitation on disclosure: If the AG files a declarationNo similar provision.
a certification made under subsection
ould harm United States national security, the court shall
iew the certification in camera and ex parte, and limit public disclosure
such certification, including any public order following such ex parte
iew, to a statement that the conditions of subsection 203(a) of the bill have
met, without disclosing the subparagraph of subsection 203(a)(1) that is the
iki/CRS-RL34533thing in this section shall be construed to limit any otherwise availableNo similar provision.
g/wmunity, privilege, or defense under any other provision.
s.or
leak A civil action brought in state courtCivil action in state court removal: Under new subsection 802(d) of FISA, a
ainst a person for providing assistance to an element of the intelligencecovered civil action (defined to mean to mean a suit in federal or state court
://wikimunity is to be deemed to arise under the Constitution and laws of theagainst any person for providing assistance to an element of the intelligence
httpovable under 28 U.S.C. § 1441.community) that is brought in a state court shall be deemed to arise under the
Constitution and laws of the United States and shall be removable under 28
U.S.C. § 1441. See below for more discussion of new section 802 of FISA.
fective date and application of new section 802 of FISA as added byApplicability of new section 802 of FISA as added by section 201 of the
Senate bill: This section applies to any civil action pending onHouse bill: Under new subsection 802(f) of FISA, this section shall apply to a
ent of the Senate bill.civil action pending on or filed after the date of the enactment of the House bill.
See below for more discussion of new section 802 of FISA.
ilar provision.Intervention by the government: Under new subsection 802(a) of FISA, in any
covered civil action, the court shall permit the Government to intervene.
CRS-78
H.R. 3773 — House Amendment to the Senate Amendment
Whether or not the Government intervenes in the civil action, the AG may
submit any information in any form that the AG determines is appropriate, and
the court shall consider all such submissions.
ilar provision.Factual and Legal Determinations: Under new subsection 802(b) of FISA, in
any covered civil action, any party may submit to the court evidence, briefs,
arguments, or other information on any matter with respect to which a privilege
based on state secrets is asserted. The court shall review any such submission in
accordance with the procedures set forth in section 106(f) of FISA and may,
iki/CRS-RL34533based on the review, make any appropriate determination of fact or law. [Section
g/w106 of FISA deals with use in federal, state, or local proceedings against an
s.oraggrieved person of information acquired or derived from a FISA electronic
leaksurveillance. In the context of a notification by a federal, state, or local
government of an intention to use such information in such a proceeding, or of
://wikia motion to discover, obtain, or suppress such information made by an aggrieved
httpperson, section 106(f) of FISA permits a U.S. district court to review in camera
and ex parte the lawfulness of the authorization and conduct of the relevant FISA
electronic surveillance of the aggrieved person, if the AG files an affidavit under
oath that disclosure or an adversary hearing would harm the national security of
the United States. In making this determination, the court may disclose to the
aggrieved person, under appropriate security procedures and protective orders,
portions of the application, order, or other materials relating to the surveillance
only where such disclosure is necessary to make an accurate determination of the
legality of the surveillance.]
— Under new subsection 802(b) of FISA, the court may, on motion of the AG,
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H.R. 3773 — House Amendment to the Senate Amendment
take any additional actions the court deems necessary to protect classified
information.
— New subsection 802(b) of FISA also provides that the court may, to the
extent practicable and consistent with national security, request that any party
present briefs and arguments on any legal question the court determines is raised
by such a submission even if that party does not have full access to the
submission. The court shall consider whether the employment of a special
master or an expert witness, or both, would facilitate proceedings under this
iki/CRS-RL34533 section.
g/w
s.orLocation of Review: Under new subsection 802(c) of FISA, the court may
leakconduct the review in a location and facility specified by the AG as necessary to
ensure security.
://wiki
httpSection 202 of the House bill amends the table of contents of FISA to add new
title VIII.
the bill, new section 803 of FISA, preemption of stateNo similar provision.
This section provides that no state shall have authority to
estigation into an electronic communication service provider’s
ed assistance to an element of the intelligence community; require through
ulation or any other means the disclosure of information about an electronic
mmunication service provider’s alleged assistance to an element of the
telligence community; impose any administrative sanction on an electronic
munication service provider for assistance to an element of the intelligence
munity; or commence or maintain a civil action or other proceeding to
CRS-80
H.R. 3773 — House Amendment to the Senate Amendment
ent that an electronic communication service provider disclose
ation concerning alleged assistance to an element of the intelligence
munity.
e United States may bring suit to enforce the provisions of new section 803No similar provision.
FISA.
strict Court Jurisdiction: United States district courts shall have jurisdictionNo similar provision.
er any civil action brought by the United States to enforce the provisions of
iki/CRS-RL34533SA.
g/w
s.orplication: This section shall apply to any investigation, action, or proceedingNo similar provision.
leak on or filed after the date of enactment of the bill.
://wikimmission on Warrantless Electronic Surveillance Activities
httpilar provision.Title III of the House bill creates a new Commission on Warrantless
Electronic Surveillance Activities in the legislative branch.
ilar provision.Duties of the Commission: Under section 301 of the House bill, the duties of
this commission are: to ascertain, evaluate, and report upon the facts and
circumstances relating to electronic surveillance activities conducted without a
warrant between September 11, 2001 and January 17, 2007; to evaluate the
lawfulness of such activities; to examine all programs and activities relating to
intelligence collection inside the United States or regarding United States
persons that were in effect or operation on September 11, 2001, and all such
programs and activities undertaken since that date, including the legal framework
CRS-81
H.R. 3773 — House Amendment to the Senate Amendment
or justification for those activities; and to report to the President and Congress
the findings and conclusions of the Commission and any recommendations the
Commission considers appropriate. Such duties are to be carried out in a manner
consistent with the need to protect national security.
ilar provision.Composition of Commission: The nine members of the Commission are to
include five members appointed jointly by the majority leader of the Senate and
the Speaker of the House of Representatives; and four members appointed jointly
by the minority leader of the Senate and the minority leader of the House of
iki/CRS-RL34533Representatives. These members are to be prominent United States citizens with
g/wsignificant depth of experience in national security, Constitutional law, and civil
s.orliberties. The Chair of the Commission is to be jointly appointed by the majority
leakleader of the Senate and the Speaker of the House of Representatives from
among the five members they jointly appointed to the Commission. The Vice
://wikiChair of the Commission is to be jointly appointed by the minority leader of the
httpSenate and the minority leader of the House of Representatives from among the
four members they jointly appointed to the Commission.
— The members of the Commission are to be appointed within 90 days of the
date of enactment of the House bill.
— The Commission shall hold its first meeting and begin operations not later
than 45 days after the date on which a majority of its members have been
appointed. Subsequent meetings are to be held upon the call of the Chair. A
majority of the members of the Commission shall constitute a quorum, but a
lesser number may hold hearings.
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H.R. 3773 — House Amendment to the Senate Amendment
— Any vacancy in the Commission shall not affect its powers and shall be filled
in the same manner in which the original appointment was made.
ilar provision.Powers of Commission: The Commission or, on the authority of the Chair, any
subcommittee or member thereof, is authorized to hold hearings, take testimony,
receive evidence, and administer oaths to carry out the Commission’s
responsibilities. The Commission is given subpoena power, and may require
attendance of witnesses and production of evidence at any place within the
United States designated for a hearing. Subpoenas issued under this paragraph
iki/CRS-RL34533may be issued under the signature of the Chair of the Commission, the chair of
g/wany subcommittee created by a majority of the Commission, or any member
s.ordesignated by a majority of the Commission and may be served by any person
leakdesignated by such Chair, subcommittee chair, or member.
://wikiilar provision.Enforcement: The Commission may seek the assistance of a U.S. district court
httpin the judicial district where the hearing is conducted or where a person refusing
to obey a subpoena is found, resides, or transacts business, to compel compliance
with the subpoena. Failure to comply with a U.S. district court order may be
punished as civil contempt of court. The Commission may also certify a
statement of fact attesting to a person’s failure to comply with a subpoena or to
testify when summoned to the appropriate U.S. Attorney. Such U.S. Attorney
is to bring the matter before the grand jury under the same statutory authority and
procedures as if the U.S. Attorney had received a certification under 2 U.S.C. §§
ilar provision.Contracting authority: The Commission is giving contracting authority to
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H.R. 3773 — House Amendment to the Senate Amendment
carry out its duties to the extent and in such amounts as are provided in
appropriations acts.
ilar provision.Information from federal agencies: The Commission is authorized to secure
information directly from any executive department, bureau, agency, board,
commission, office, independent establishment, or instrumentality of the
Government documents, information, suggestions, estimates, and statistics for
the purposes of this section. Each department, bureau, agency, board,
commission, office, independent establishment, or instrumentality shall furnish
iki/CRS-RL34533such documents, information, suggestions, estimates, and statistics directly to the
g/wCommission upon request made by the Chair, the chair of any subcommittee
s.orcreated by a majority of the Commission, or any member designated by a
leakmajority of the Commission.
://wiki — Information shall only be received, handled, stored, and disseminated
httpby members of the Commission and its staff in a manner consistent with all
applicable statutes, regulations, and Executive orders.
— The Administrator of General Services shall provide to the Commission
on a reimbursable basis administrative support and other services for the
performance of the Commission’s functions.
— In addition to the assistance provided by federal agencies and entities
under the authority above, departments and agencies of the United States
may provide to the Commission such services, funds, facilities, staff, and
other support services as they may determine advisable and as may be
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H.R. 3773 — House Amendment to the Senate Amendment
authorized by law.
ilar provision.Other authorities: Among other things, the Commission is also authorized to
enter into contracts, receive gifts, appoint and compensate staff, and employ
consultants. Federal employees may be detailed to the Commission without
reimbursement from the Commission, and such detailees shall retain the rights,
status, and privileges of his or her regular employment without interruption.
ilar provision.Security Clearances for Commission Members and Staff: The appropriate
iki/CRS-RL34533Federal agencies or departments shall cooperate with the Commission in
g/wexpeditiously providing to the Commission members and staff appropriate
s.orsecurity clearances to the extent possible pursuant to existing procedures and
leakrequirements, except that no person shall be provided with access to classified
information under this section without the appropriate security clearances.
://wiki
httpilar provision.Access to classified information: All members of the Commission and
commission staff, as authorized by the Chair or the designee of the Chair, who
have obtained appropriate security clearances, shall have access to classified
information related to the surveillance activities within the scope of the
examination of the Commission and any other related classified information that
the members of the Commission determine relevant to carrying out the duties of
the Commission under this section.
ilar provision.Facilities and resources: The DNI shall provide the Commission with
appropriate space and technical facilities approved by the Commission.
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H.R. 3773 — House Amendment to the Senate Amendment
When engaged in performance of their Commission duties, Commission
members are entitled to compensation at a rate not to exceed the daily equivalent
of the annual rate of basic pay in effect for a position at level IV of the Executive
Schedule under 5 U.S.C. § 5315, and are allowed travel expenses..
The Federal Advisory Committee Act shall not apply to the Commission.
ilar provision.Public meetings and hearings: The Commission shall hold public hearings and
meetings to the extent appropriate. Any public hearings of the Commission shall
iki/CRS-RL34533be conducted in a manner consistent with the protection of information provided
g/wto or developed for or by the Commission as required by any applicable statute,
s.orregulation, or Executive order.
leak
ilar provision.Reports and Recommendations of Commission:
://wiki
http — Interim reports: The Commission may submit to the President and
Congress interim reports containing such findings, conclusions, and
recommendations for corrective measures as have been agreed to by a majority
of Commission members.
— Final report: The Commission, in consultation with appropriate
representative of the intelligence community, must file its final report within one
year after the date of its first meeting. The final report, containing such
information, analysis, findings, conclusions, and recommendations as have been
agreed to by a majority of Commission members, shall submit to the President
and Congress. It shall be in an unclassified form, but may have a classified
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H.R. 3773 — House Amendment to the Senate Amendment
annex.
— Recommendations for declassification: The Commission may make
recommendations to the appropriate department or agency of the Federal
Government regarding the declassification of documents or portions of
documents.
— Termination: The Commission and its authorities shall terminate 60 days
after submission of its final report. The Commission may use that 60-day period
iki/CRS-RL34533for the purpose of concluding its activities, including providing testimony to
g/wcommittees of Congress concerning its report and disseminating the final report.
s.or
leakilar provision.Definitions: “Intelligence community” and “United States person” are defined
for purposes of this section:
://wiki
httpilar provision.Authorization and availability of appropriations: There are authorized to be
appropriated such sums as may be necessary to carry out the activities of the
Commission under this section. Such appropriated mounts shall remain
available until the termination of the Commission.
verability, Effective Date, Repeal of Protect America Act Provisions, and Transition Procedures
tle III of the Senate bill, other provisions: Title IV of the House bill, other provisions:
erability provision. Similar provision, section 401 of the House bill.
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H.R. 3773 — House Amendment to the Senate Amendment
addresses the effective date of the bill if enacted into law;
SA provisions added by the Protect America Act; and
Effective date: Under subsection 302(a) of the bill, the date of enactmentSimilar provision.
law is to be the effective date, except as provided in subsection
with transitional procedures and authorizations and directives in
ent of the bill and on the date the bill sunsets.
iki/CRS-RL34533Repeal of certain Protect America Act (PAA) provisions and relatedSimilar provision. Except as provided in section 404, sections 105A, 105B, and
g/w contents entries: Except as provided in the transition procedures under105C of the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. 1805a,
s.orSA, sections 105A, 105B, and 105C of FISA, 50 U.S.C.1805b, and 1805c, are repealed, along with related table of contents entries. In
leak, 1805B, and 1805C are repealed by subsection 302(b) of the bill, alongaddition, except as provided in section 404, section 4 of the PAA (dealing with
semi-annual reporting by the AG to the congressional intelligence committees
://wikiand the House and Senate Judiciary Committees regarding non-compliance with
httpdirectives issued by the AG and DNI under Section 105B of FISA in connection
with PAA acquisitions) and section 6 of the PAA (dealing with transition
procedures) are repealed.
Transitions Procedures: — Transition Procedures:
— Protection from liability: Subsection 105B(l) of FISA, as added by — Protection from liability:
the Protect America Act, protected from civil suit those who furnished
information, facilities, or assistance to the government pursuant to a
directive issued by the AG under section 105B. Under Section 105B of
FISA, as added by the PAA, acquisitions of the contents of
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H.R. 3773 — House Amendment to the Senate Amendment
communications concerning persons reasonably believed to be located
outside the United States could be authorized for up to 1 year. The PAA
was enacted on August 5, 2007, and sunseted on February 16, 2008.
Depending upon the expiration date of acquisitions authorized during this
period, some may continue in effect until between August 5, 2008 and
February 16, 2009. The transition provisions in section 6 of the Protect
America Act explicitly provided that acquisitions authorized under the
amendments to FISA made by the PAA before its sunset, and related
directives requiring recipients of those directives to furnish aid to the
iki/CRS-RL34533government in connection with such acquisitions, were to remain in effect
g/wuntil their expiration. However, those PAA transition procedures did not
s.orexpressly provide for continuation of the protection from civil liability
leakunder section 105B(l) of FISA afforded those who furnished aid to the
government related to such acquisitions pursuant to related directives. The
://wikilast sentence of section 6 of the PAA stated the acquisitions that were to
httpremain in force until their expiration “shall be governed by the applicable
provisions of such amendments [to FISA made by the PAA] and shall not
be deemed to constitute electronic surveillance as that term is defined in
section 101(f) of [FISA].” While it might be argued that subsection
105B(l) might be considered an “applicable provision” and might therefore
remain in effect as long as the acquisition and related directives do, the
absence of express language on the point may give rise to ambiguity.
Under section 302(c)(1) of H.R. 3773 as passed by the Senate thatUnder section 404(a)(4) of the House bill, subsection 105B(1) of FISA, as
ambiguity is resolved. Subsection 302(c)(1) of the bill provides thatadded by section 2 of the PAA, “shall continue to apply with respect to any
subsection 105B(l) of FISA “shall remain in effect with respect to anydirectives issued pursuant to such 105B.” Under section 404(a)(7) of the
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H.R. 3773 — House Amendment to the Senate Amendment
directives issued pursuant to such section 105B for information, facilities,House bill, section 404(a)(4) of the bill shall apply as if it had been enacted
or assistance provided during the period such directive was or is in effect.”on August 5, 2007, when the PAA was enacted.
ilar provision.Under section 404(a)(5) of the House bill, the petition review pool of the
FISC shall continue to have jurisdiction over petitions challenging the
legality of a directive issued pursuant to section 105B of FISA, as added by
section 2 of the PAA, until the expiration of all orders, authorizations, and
directives issued or made pursuant to that section. Under section 404(a)(7)
of the House bill, section 404(a)(5) of the bill shall apply as if it had been
iki/CRS-RL34533enacted on August 5, 2007, when the PAA was enacted.
g/w
s.or
leak
— Orders in effect: — Orders in effect:
://wiki
http — Under subsection 302(c)(2)(A) of the Senate bill, notwithstanding — Under subsection 404(a)(1) of the House bill, notwithstanding any
any other provision of the bill or of FISA, any order in effect on theother provision of law, any order, authorization, or directive issued or
date of enactment pursuant to FISA or section 6(b) of the PAA is tomade pursuant to 105B of FISA, as added by section 2 of the PAA,
remain in effect until the order’s expiration date. In addition, at theshall continue in effect until the expiration of such order,
request of the applicant, the FISC shall reauthorize such order if theauthorization, or directive. Under section 404(a)(7) of the House
facts and circumstances continue to justify issuance of the orderbill, section 404(a)(1) of the bill shall apply as if it had been enacted
under FISA as it existed before enactment of the PAA, except ason August 5, 2007, when the PAA was enacted.
provided in sections 102 through 110 of the Senate bill.
— Under subsection 302(c)(2)(B) of the Senate bill, any order issued — Under section 404(b)(1) and (2) of the House bill,
under title VII of FISA, as amended by section 101 of the Senate bill,notwithstanding any other provision of the House bill or of FISA, any
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H.R. 3773 — House Amendment to the Senate Amendment
in effect on December 31, 2013, shall continue in effect until the dateorder, authorization, or directive issued or made under title VII of
of expiration of the order, and shall be governed by the applicableFISA, as amended by section 101(a) of the House bill, in effect on
provisions of FISA as so amended.December 31, 2009, shall continue in effect until the date of the
expiration of such order, authorization or directive, and title VII of
FISA, as amended by section 101(a) of the House bill, shall continue
to apply to them until their expiration.
— Authorizations and directives in effect: — Authorizations and directives in effect:
iki/CRS-RL34533 — Authorizations and directives in effect on date of enactment: — Continued effect of orders, authorizations, directives: Under
g/wUnder subsection 302(c)(3)(A) of the bill, notwithstanding any othersubsection 404(a)(1) of the House bill, notwithstanding any other
s.orprovision of the bill or of FISA, authorizations and directives in effectprovision of law, any order, authorization, or directive issued or made
leakon the date of enactment of the Senate bill that were issued pursuantpursuant to 105B of FISA, as added by section 2 of the PAA, shall
to the PAA, or any amendment made by the PAA, would remain incontinue in effect until the expiration of such order, authorization, or
://wikieffect until the expiration date of that authorization or directive. Anydirective. Under subsection 404(a)(2) of the House bill, subject to
httpsuch authorization or directive would be governed by applicableparagraph 404(3) of that bill (dealing with use of information
provisions of the PAA and amendments made by the PAA. Except asacquired under a PAA order, authorization, or directive),
provided in subsection 302(c)(4) of the bill, any acquisition pursuantnotwithstanding any other provision of this House bill or of FISA,
to such authorization or directive would be deemed not to constitutesection 105A of such FISA, as added by section 2 of the PAA, shall
electronic surveillance under section 101(f) of FISA, as construed incontinue to apply to any acquisition conducted pursuant to an order,
accordance with section 105A of FISA as added by the PAA. Sectionauthorization, or directive 105B of FISA as added by section 2 of the
105A of FISA provided that, “Nothing in the definition of electronicPAA; and sections 105B and 105C of FISA, as so added, shall
surveillance under section 101(f) shall be construed to encompasscontinue to apply with respect to any such order, authorization, or
surveillance directed at a person reasonably believed to be locateddirective until the expiration of such order, authorization, or directive.
outside of the United States.”Under section 404(a)(7) of the House bill, subsections 404(a)(1) and
(2) of the bill shall apply as if it had been enacted on August 5, 2007,
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H.R. 3773 — House Amendment to the Senate Amendment
when the PAA was enacted.
— Authorizations and directives in effect on December 31, 2013:— Orders in effect on December 31, 2009: Under section 404(b)(1)
Under subsection 302(c)(3)(B), any authorization or directive issuedand (2) of the House bill, notwithstanding any other provision of the
under title VII of FISA, as amended by section 101 of the bill, inHouse bill or of FISA, any order, authorization, or directive issued or
effect on December 31, 2013, shall continue in effect until the date ofmade under title VII of FISA, as amended by section 101(a) of the
expiration of that authorization or directive. Any such authorizationHouse bill, in effect on December 31, 2009, shall continue in effect
or directive shall be governed by the applicable provisions of FISA,until the date of the expiration of such order, authorization or
as so amended, and, except as provided in section 707 of FISA, as sodirective, and title VII of FISA, as amended by section 101(a) of the
iki/CRS-RL34533amended, any acquisition pursuant to such authorization or directiveHouse bill, shall continue to apply to them until their expiration.
g/wshall be deemed not to constitute electronic surveillance (as that term
s.oris defined in subsection 101(f) of FISA, to the extent that such
leaksubsection 101(f) is limited by section 701 of FISA, as so amended).
://wiki
http — Use of information acquired under the PAA: Subsection 302(c)(4) — Use of information acquired under the PAA: Subsection 404(a)(3)
provides that information acquired from an acquisition conducted under theof the House bill provides that information acquired from an acquisition
PAA, and amendments made by the PAA, shall be deemed to beconducted pursuant to an order, authorization, or directive issued or made
information acquired from an electronic surveillance pursuant to title I ofpursuant to section 105Bof FISA, as added by section 2 of the PAA, shall
FISA, 50 U.S.C. § 1801 et seq., for the purposes of section 106 of FISA, 50be deemed to be information acquired from an electronic surveillance
U.S.C. § 1806, except for purposes of subsection 106(j) of FISA.pursuant to title I of the FISA, 50 U.S.C. 1801 et seq., for purposes of
(Subsection 106(j) deals with “notification of emergency employment ofsection 106 of FISA, 50 U.S.C. 1806. Under section 404(a)(7) of the
electronic surveillance; contents; postponement, suspension orHouse bill, section 404(a)(3) of the bill shall apply as if it had been enacted
elimination.”)on August 5, 2007, when the PAA was enacted.
— New orders: Under subsection 302(c)(5) of the bill, notwithstandingNo similar provision.
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H.R. 3773 — House Amendment to the Senate Amendment
any other provision of the Senate bill or of FISA, the government may file
an application for an order under FISA, as in effect on the day before the
date of the enactment of the PAA, except as amended by sections 102, 103,
104, 105, 106, 107, 108, 109, and 110 of the bill; and the FISC shall enter
an order granting such an application if the application meets the
requirements of FISA, as in effect on the day before the date of the
enactment of the PAA, except as amended by sections 102, 103, 104, 105,
iki/CRS-RL34533 — Extant Authorizations: Under subsection 302(c)(6) of the bill, at theNo similar provision.
g/wrequest of the applicant, the FISC shall extinguish any extant authorization
s.orto conduct electronic surveillance or physical search entered pursuant to
leakFISA.
://wiki — Applicable provisions: Under subsection 302(c)(7) of the bill, anyNo similar provision.
httpsurveillance conducted pursuant to an order entered pursuant to subsection
302(c)shall be subject to the provisions of FISA as in effect on the day
before the date of enactment of the PAA, except as amended by sections
— Transition procedures concerning the targeting of U.S. persons— Transition procedures concerning the targeting of U.S. persons
overseas: Under subsection 302(c)(8) of the Senate bill, any authorizationoverseas: Similar provision, subsection 404(b)(5) of the House bill.
in effect on the date of enactment of that bill under section 2.5 of E.O.
12333 to intentionally target a U.S. person reasonably believed to be
located outside the United States shall remain in effect, and shall constitute
a sufficient basis for conducting such an acquisition targeting a U.S. person
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H.R. 3773 — House Amendment to the Senate Amendment
located outside the United States until the earlier of the date that
authorization expires or 90 days after the date of enactment of the bill.
ing requirements with respect to the PAA and section 601of FISA, as amended
ilar provision.Reporting requirements with respect to the PAA: Under subsection
or FISA, section 4 of the PAA (dealing with semi-annual reporting by the AG to
the congressional intelligence committees and the House and Senate Judiciary
Committees on non-compliance with directives issued by the AG and DNI under
iki/CRS-RL34533section 105B of FISA in connection with PAA acquisitions) shall continue to
g/wapply until the date that the certification described in subparagraph 404(a)(6)(B)
s.oris submitted. The referenced certification by the AG is to be submitted as part
leakof a semi-annual report required by section 4 of the PAA. The certification
://wikistates that there will be no further acquisitions carried out under section 105B ofFISA, as added by section 2 of the PAA, after the date of such certification; and
httpthat the information required to be included under section 4 of the PAA relating
to any acquisition conducted under such section 105B has been included in a
semi-annual report required by such section 4. Under section 404(a)(7) of the
House bill, section 404(a)(6) of the bill shall apply as if it had been enacted on
August 5, 2007, when the PAA was enacted.
ilar provision.Reporting requirements with respect to Section 601(a) of FISA, 50 U.S.C. §
Under subsection 404(b)(4) of the House bill, notwithstanding any other
provision of the House bill or of FISA, section 601(a) of FISA, 50 U.S.C. §
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H.R. 3773 — House Amendment to the Senate Amendment
FISA shall continue to apply until the date that the certification described in
subsection 404(b)(4)(B) of the House bill is submitted by the AG to the
congressional intelligence committees and the House and Senate Judiciary
Committees. Such certification states that there will be no further acquisitions
carried out under title VII of FISA, as amended by section 101(a) of the House
bill, after the date of such certification; and that the information required to be
included in a review, assessment, or report under section 601 of FISA, as
amended by section 101(c) of the House bill, or section 702(l) or 707 of FISA,
as added by section 101(a) of the House bill, relating to any acquisition
iki/CRS-RL34533conducted under title VII of FISA, as amended by section 101(a) of the House
g/wbill, has been included in a review, assessment, or report under such section 601,
s.or702(l), or 707.
leak
plicability of Provisions on Challenge of Directives, Protection from Liability, and Use of Information
://wikiilar provision.Applicability of FISC petition review pool jurisdiction with respect to
httpchallenges to directives issued under new subsection 702(h) of FISA, as
added by section 101(a) of the House bill: Under subsection 404(b)(3)(A) of
the House bill, notwithstanding any other provision of the House bill or of FISA,
subsection 103(a) of FISA, “as amended by section 113” [sic?], shall continue
to apply with respect to any directive issued pursuant to subsection 702(h) of
FISA, as added by subsection 101(a) of the bill. Note that there appears to be
no section 113 in the House bill, nor in FISA. However, subsection
403(a)(1)(B)(ii) of the House bill does amend section 103(a) of FISA, dealing
with the jurisdiction of the petition review pool of the FISC, to replace “105B(h)
or 501(f)(1)” with inserting “501(f)(1) or 702(h)(4).” Section 702(h)(4)
addresses challenges to directives issued under section 702(h) of FISA, as
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H.R. 3773 — House Amendment to the Senate Amendment
amended by the House bill.
ilar provision.Applicability of release from liability for electronic communication service
providers furnishing aid to the government in accordance with a directive
issued pursuant to new subsection 702(h)(1) of FISA, as added by subsection
notwithstanding any other provision of the House bill or of FISA, subsection
702(h)(3) of FISA, as added by section 101(a) of the House bill, shall continue
to apply with respect to any directive issued pursuant to new subsection 702(h)
iki/CRS-RL34533of FISA. Subsection 703(h) of FISA provides that, notwithstanding any otherprovision of law, no cause of action shall lie in any court against any electronic
g/wcommunication service provider for providing any information, facilities, or
s.or
leakassistance in accordance with a directive issued under new subsection 702(h)(1).
://wikiilar provision.Applicability of release from liability for electronic communication serviceproviders furnishing aid to the government pursuant to an order or request
httpfor emergency assistance issued pursuant to new subsection 703(d) or (e) of
FISA: Under subsection 404(b)(3)(C) of the House bill, notwithstanding any
other provision of the House bill or of FISA, the release from liability under new
subsection 703(e) of FISA shall continue to apply with respect to an order or
request for emergency assistance under section 703 of FISA, as added by the
House bill.
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H.R. 3773 — House Amendment to the Senate Amendment
ilar provision.Applicability of section 706 of FISA dealing with use of information
acquired under new sections 702 or 703 of FISA: Notwithstanding any other
provision of the House bill or of FISA, under subsection 404(b)(3)(D) of the
House bill, new section 706 of FISA (which provides that information acquired
under new section 702 or 703 of FISA shall be considered information acquired
from an electronic surveillance pursuant to title I of FISA for purposes of section
106 of FISA) shall continue to apply with respect to an acquisition conducted
under section 702 or 703 of FISA.
iki/CRS-RL34533ilar provision.Applicability of 18 U.S.C. § 2511(2)(a)(ii)(A) of FISA, as amended by section101(c)(1) of the House bill: Section 404(b)(3)(E) of the House bill provides
g/wthat, notwithstanding any other provision of the House bill or of FISA, 18 U.S.C.
s.or
leak§ 2511(2)(a)(ii)(A) of FISA, as amended by section 101(c)(1) of the House bill,
shall continue to apply to an order issued pursuant to section 704 of FISA
://wiki(dealing with emergency authorizations), as added by section 101(a) of the
httpHouse bill. [18 U.S.C. § 2511(2)(a)(ii)(A) would be amended by section
providers of wire or electronic communication service, their officers, employees,
and agents, landlords, custodians, or other person, are authorized to provide
information, facilities, or technical assistance to persons authorized by law to
intercept wire, oral, or electronic communications or to conduct electronic
surveillance, as defined in section 101 of [FISA], if such provider, its officers,
employees, or agents, landlord, custodian, or other specified person, has been
provided with a court order directing such assistance or a court order pursuant
to section 704 of [FISA] signed by the authorizing judge.” [Emphasis added.]]
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H.R. 3773 — House Amendment to the Senate Amendment
ghts Under the FISA Amendments Act of 2008 for Undocumented Aliens
similar provision.Section 405 of the House bill provides that, “This Act and the amendments made
by this Act shall not be construed to prohibit surveillance of, or grant any rights
to, an alien not permitted to be in or remain in the United States.”
rveillance to Protect the United States
similar provision.Section 406 of the House bill provides that the bill, and the amendments made
by it, shall not be construed to prohibit the intelligence community (as defined
iki/CRS-RL34533in section 3(4) of the National Security Act of 1947, 50 U.S.C. § 401a(4)) from
g/wconducting lawful surveillance that is necessary to:
s.or
leak — prevent Osama Bin Laden, al Qaeda, or any other terrorist or terrorist
://wikiorganization from attacking the United States, any U.S. person, or any allyof the United States;
http
— ensure the safety and security of members of the United States Armed
Forces or any other officer or employee of the federal government involved
in protecting the national security of the United States; or
— protect the United States, any U.S. person, or any ally of the United
States from threats posed by weapons of mass destruction or other threats
to national security.
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.