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Archive for March, 2014

Privacy & Governance

March 29th, 2014 No comments

Today, the Internet ( the World Wide Web ), as a trusted public utility has been rendered fatally flawed – leaving in its wake a snake pit of distrust and subterfuge.  The irony is that this service, created by the government as a constructive collaborative vehicle, has now become corrupted by the government that created it, the technologists that facilitated it and the nefarious that have misused it.  What was to be a gift for the world has become a pariah.

–Jeffrey Slee


 

Categories: Govenance & Privacy

Obama Proposal Ending the Section 215 Bulk Telephony Metadata Program as it Existed

March 28th, 2014 No comments

FACT SHEET: The Administration’s Proposal for Ending the Section 215 Bulk Telephony Metadata Program

On January 17, 2014, President Obama gave a speech at the Department of Justice on his Administration’s review of certain intelligence activities.  During this speech, he ordered a transition that would end the Section 215 bulk telephony metadata program as it previously existed and establish a new mechanism to preserve the capabilities we need without the government holding this bulk metadata.  The President made clear that he was ordering this transition to give the public greater confidence that their privacy is appropriately protected, while maintaining the tools our intelligence and law enforcement agencies need to keep us safe. This fact sheet describes the steps the Administration has taken to implement this transition, details the President’s proposal for a new program to replace the Section 215 program, and outlines the steps the Administration will be taking in the near future to realize the President’s vision. 

Ending the Section 215 Bulk Telephony Metadata Program as it Existed

On January 17, 2014, the President directed the first step in the transition of the Section 215 program; that the Department of Justice (DOJ) to seek to modify the program to ensure that:

  • Absent an emergency situation, the government can query the telephony metadata collected pursuant to the program only after a judge approves the use of specific numbers for such queries based on national security concerns; and
  • The results of any query are limited to metadata within two hops of the selection term being used, instead of three.

On February 5, 2014, the Foreign Intelligence Surveillance Court (FISC) approved the government’s request to modify the program.   

The President’s Proposal to Replace the Section 215 Program

For the second step in the transition, the President instructed the Attorney General and the Intelligence Community (IC) to develop options for a new program that could match the capabilities and fill the gaps that the Section 215 metadata program was designed to address without the government holding the bulk telephony metadata records.  The President further instructed the Attorney General and the IC to report back to him with options for alternative approaches before the program comes up for reauthorization by the FISC on March 28th. 

Consistent with this directive, DOJ and the IC developed options designed to meet the criteria the President laid out in his speech — to preserve the capabilities we need without the government holding this metadata. The Administration has also consulted with Congress, the private sector, privacy and civil liberties groups, and other interested groups. 

On the basis of these consultations, and after having carefully considered the available options, the President has decided on a proposal that will, with the passage of appropriate legislation, allow the government to end bulk collection of telephony metadata records under Section 215, while ensuring that the government has access to the information it needs to meet its national security requirements.  Under the President’s proposal, a new program would be created with the following key attributes:

  • the government will not collect these telephone records in bulk; rather, the records would remain at the telephone companies for the length of time they currently do today; 
  • absent an emergency situation, the government would obtain the records only pursuant to individual orders from the FISC approving the use of specific numbers for such queries, if a judge agrees based on national security concerns;
  • the records provided to the government in response to queries would only be within two hops of the selection term being used, and the government’s handling of any records it acquires will be governed by minimization procedures approved by the FISC;
  • the court-approved numbers could be used to query the data over a limited period of time without returning to the FISC for approval, and the production of records would be ongoing and prospective; and
  • the companies would be compelled by court order to provide technical assistance to ensure that the records can be queried and that results are transmitted to the government in a usable format and in a timely manner.

The President believes that this approach will best ensure that we have the information we need to meet our intelligence requirements while enhancing public confidence in the manner in which this information is collected and held. 

The Path Forward

Legislation will be needed to implement the President’s proposal.  The Administration has been in consultation with congressional leadership and members of the Intelligence and Judiciary Committees on this important issue throughout the last year, and we look forward to continuing to work with Congress to pass a bill that achieves the goals the President has put forward.  Given that this legislation will not be in place by March 28 and given the importance of maintaining the capabilities in question, the President has directed DOJ to seek from the FISC a 90-day reauthorization of the existing program, which includes the substantial modifications in effect since February.

Categories: Govenance & Privacy

FISA Transparency and Modernization Act HR4291

March 28th, 2014 No comments

FAHCR1113THWISA_002.XML

(Original Signature of Member)

113TH CONGRESS

2D SESSION

To amend the Foreign Intelligence Surveillance Act of 1978 to prohibit the bulk collection of call detail records, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

Mr. ROGERS of Michigan (for himself and [see ATTACHED LIST of cospon­sors]) introduced the following bill; which was referred to the Committee on

A BILL

To amend the Foreign Intelligence Surveillance Act of 1978 to prohibit the bulk collection of call detail records, and for other purposes.

1           Be it enacted by the Senate and House of Representa‑

2 tines of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4               This Act may be cited as the “FISA Transparency

5 and Modernization Act”.

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2

1 SEC. 2. PROHIBITION ON BULK COLLECTION OF CALL DE‑

2                      TAIL RECORDS.

3             Section 501(a) of the Foreign Intelligence Surveil‑

4 lance Act of 1978 (50 U.S.C. 1861) is amended‑

5                   (1) .lia paragraph (1), by striking “other items”

6         and inserting “other items, but not including call de‑

7          tail records”; and

8                        (2) by adding at the end the following new

9          paragraph:”.

10            “(4) In this subsection, the term ‘call detail records’

11 means communications routing information, including an

12 original or terminating telephone number, an Inter‑

13 national Mobile Subscriber Identity, an International Mo‑

14 bile Station Equipment Identity, a trunk identifier, a tele‑

15 phone calling card number, the time or duration of a call,

16 or original or terminating text-message numerical infor‑

17 mation.”.

18 SEC. 3. PROHIBITION ON BULK COLLECTION OF ELEC‑

19                      TRONIC COMMUNICATIONS RECORDS.

20       (a) IN GENERAL.—Notwithstanding any other provi‑

21 sion of law, the Federal Government may not acquire

22 under the Foreign Intelligence Surveillance Act of 1978

23 (50 U.S.C. 1801 et seq.) records of any electronic commu‑

24 nication without the use of specific identifiers or selection

25 terms.

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3

1         (b) DEFINITION OF ELECTRONIC COMMUNICA‑

2 TIONS.—In this section, the term “electronic communica‑

3 tion” has the meaning given such term under section 2510

4 of title 18, United States Code.

5 SEC. 4. PROHIBITION ON BULK COLLECTION OF CERTAIN

6                           BUSINESS RECORDS.

7         Notwithstanding any other provision of law, the Fed‑

8 eral Government may not acquire under the Foreign Intel‑

9 ligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.)

10 library circulation records, library patron lists, book sales

11 records, book customer lists, firearm sales records, tax re‑

12 turn records, educational records, or medical records con‑

13 taming information that would identify a person without

14 the use of specific identifiers or selection terms.

15 SEC. 5. APPOINTMENT OF AMICUS CURIAE.

16           Section 103 of the Foreign Intelligence Surveillance

17 Act of 1978 (50 U.S.C. 1803) is amended by adding at

18 the end the following:

19             “(i) AMICUS CURIAE .—

20                “(1) AUTHORIZATION.—Notwithstanding any

21                other provision of law, a court established under

22               subsection (a) or (b) may, consistent with the re‑

23           quirement of subsection (c) and any other statutory

24         requirement that the court act expeditiously or with‑

25             in a stated time, to appoint amicus curiae to assist

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4

1            the court in the consideration of a covered applica‑

2          tion.

3                     “(2) DESIGNATION.—The courts established by

4                  subsection (a) and (b) shall each designate 1 or

5            more individuals who have been determined by ap‑

6           propriate executive branch officials to be eligible for

7                 access to classified information who may be ap‑

8            pointed to serve as amicus curiae. In appointing an

9             amicus curiae pursuant to paragraph (1), the court

10          may choose from among those so designated.

11                       “(3) EXPERTISE.—An individual appointed as

12           an amicus curiae under paragraph (1) may be a spe‑

13                cial counsel or an expert on privacy and civil lib‑

14        erties, intelligence collection, telecommunications, or

15             any other area that may lend legal or technical ex‑

16          pertise to the court.

17                           “(4) DUTIES.—An amicus curiae appointed

18           under paragraph (1) to assist with the consideration

19               of a covered application shall carry out the duties

20              assigned by the appointing court. That court may

21            authorize, to the extent consistent with the case or

22            controversy requirements of Article III of the Con‑

23          stitution of the United States and the national secu‑

24               rity of the United States, the amicus curiae to re‑

25          view any application, certification, petition, motion,

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5

1          or other submission that the court determines is rel‑

2          evant to the duties assigned by the court.

3                 “(5) NOTIFICATION. —A court established under

4          subsection (a) or (b) shall notify the Attorney Gen‑

5          oral of each exercise of the authority to appoint an

6          amicus curiae under paragraph (1).

7                 “(6) ASSISTANCE .—A court established under

8          subsection (a) or (b) may request and receive (in‑

9          eluding on a non-reimbursable basis) the assistance

10         of the executive branch in the implementation of this

11         subsection.

12                “(7) ADMINISTRATION.—A court established

13         under subsection (a) or (b) may provide for the des‑

14         ignation, appointment, removal, training, support, or

15         other administration of an amicus curiae appointed

16         under paragraph (1) in a manner that is not incon‑

17         sistent with this subsection.

18                     “(8) CONGRESSIONAL OVERSIGHT.—The Attor‑

19         ney General shall submit to the appropriate commit‑

20         tees of Congress an annual report on the number of

21         notices described in paragraph (5) received by Attor‑

22         ney General for the preceding 12-month period.

23         Each such report shall include the name of each in‑

24         dividual appointed as an amicus curiae during such

25         period.

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March 25, 2014 (2:42 p.m.)

 

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6

1                “(9) DEFINITIONS.—In this subsection:

2                           “(A) APPROPRIATE COMMITTEES OF CON‑

3                      DRESS.—The term ‘appropriate committees of

4                Congress’ means‑

5                                   “(i) the Committee on the Judiciary

6                          and the Select Committee on Intelligence

7                        of the Senate; and

8                                   “(ii) the Committee on the Judiciary

9                           and the Permanent Select Committee on

10                           Intelligence of the House of Representa‑

11                        tives.

12                              “(B) COVERED APPLICATION.—The term

13                    ‘covered application’ means an application for

14                   an order or review made to a court established

15                under subsection (a) or (b)‑

16                                       “(i) that, in the opinion of such a

17                         court, presents a novel or significant inter‑

18                        pretation of the law; and

19                               “(ii) that is‑

20                                          “(I) an application for an order

21                                   under this title, title III, IV, or V of

22                                this Act, or section 703 or 704 of this

23                               Act;

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7

1                                           “(II) a review of a certification

2                                     or procedures under section 503 or

3                               702 of this Act; or

4                                       “(III) a notice of non-compliance

5                                  with any such order, certification, or

6                               procedures.”.

7 SEC. 6. REPORTING REQUIREMENTS FOR DECISIONS OF

8                            THE FOREIGN INTELLIGENCE SURVEIL‑

9                     LANCE COURT.

10            Section 601(c)(1) of the Foreign Intelligence Surveil‑

11 lance Act of 1978 (50 U.S.C. 1871(c)) is amended to read

12 as follows:

13                        “(1) not later than 45 days after the date on

14         which the Foreign Intelligence Surveillance Court or

15             the Foreign Intelligence Surveillance Court of Re‑

16                 view issues a decision, order, or opinion that in‑

17          eludes a significant construction or interpretation of

18           any provision of this Act or a denial of a request for

19            an order or a modification of a request for an order,

20          or results in a change of application of any provision

21            of this Act or a new application of any provision of

22            this Act‑

23                                “(A) a copy of such decision, order, or

24                        opinion and any pleadings, applications, or

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8

1                    memoranda of law associated with such deci‑

2                sion, order, or opinion; and

3                           “(B) with respect to such decision, order,

4                       or opinion, a brief statement of the relevant

5                     background factual information, questions of

6                 law, legal analysis, and decision rendered; and”.

7 SEC. 7. DECLASSIFICATION OF DECISIONS, ORDERS, AND

8                      OPINIONS.

9             (a) DECLASSIFICATION.—Title VI of the Foreign In‑

10 telligence Surveillance Act of 1978 (50 U.S.C. 1871 et

11 seq.) is amended‑

12                        (1) in the heading, by striking “REPORT‑

13                ING REQUIREMENT” and inserting “OVER‑

14          SIGHT”; and

15                 (2) by adding at the end the following new sec‑

16          tion:

17 “SEC. 602. DECLASSIFICATION OF SIGNIFICANT DECISIONS,

18                      ORDERS, AND OPINIONS.

19                     “(a) DECLASSIFICATION REQUIRED.—Subject to

20 subsection (b), the Director of National Intelligence shall

21 conduct a declassification review of each decision, order,

22 or opinion issued by the Foreign Intelligence Surveillance

23 Court or the Foreign Intelligence Surveillance Court of

24 Review that includes significant construction or interpre‑

25 tation of any provision of this Act and, consistent with

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9

1 that review, make publicly available to the greatest extent

2 practicable each such decision, order, or opinion.

3                   “(b) REDACTED FORM.—The Director of National

4 Intelligence may satisfy the requirement under subsection

5 (a) to make a decision, order, or opinions described in such

6 subsection publicly available to the greatest extent prac‑

7 ticable by making such decision, order, or opinion publicly

8 available in redacted form.

9                 “(c) NATIONAL SECURITY WAIVER.—The Director of

10 National Intelligence may waive the requirement to declas‑

11 sify and make publicly available a particular decision,

12 order, or opinion under subsection (a) if the Director‑

13                     “(1) determines that a waiver of such require‑

14           ment is necessary to protect the national security of

15             the United States or properly classified intelligence

16         sources or methods; and

17                        “(2) makes publicly available an unclassified

18         summary of such decision, order, or opinion.”.

19                   (b) TABLE OF CONTENTS AMENDMENTS.—The table

20 of contents in the first section of such Act is amended‑

21                    (1) by striking the item relating to title VI and

22         inserting the following new item:

“TITLE VI—OVERSIGHT”; AND

23                      (2) by inserting after the item relating to sec‑

24         tion 601 the following new item:

“Sec. 602. Declassification of significant decisions, orders, and opinions.”.

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1 SEC. 8. PUBLIC REPORTING ON INCIDENTAL COLLECTION

2                      OF UNITED STATES PERSON INFORMATION.

3            Section 601 of the Foreign Intelligence Surveillance

4 Act of 1978 (50 U.S.C. 1871) is amended‑

5                         (1) by redesignating subsection (e) as sub‑

6          section (f); and

7                        (2) by inserting after subsection (d) the fol‑

8          lowing new subsection:

9              “(e) PUBLIC REPORTING ON INCIDENTAL COLLEC‑

10 TION OP UNITED STATES PERSON INFORMATION.—The

11 Attorney General shall annually make publicly available

12 a report describing the number of identified instances in

13 which the contents of a communication of a United States

14 person was acquired under this Act when the acquisition

15 authorized by this Act that resulted in the collection of

16 such contents could not reasonably have been anticipated

17 to capture such contents.”.

18 SEC. 9. ANNUAL REPORTS ON VIOLATIONS OF LAW OR EX‑

19                      ECUTIVE ORDER.

20                (a) IN GENERAL.—Title V of the National Security

21 Act of 1947 (50 U.S.C. 3091 et seq.) is amended by add‑

22 ing at the end the following:

23 “SEC. 509. ANNUAL REPORT ON VIOLATIONS OF LAW OR EX‑

24                      ECUTIVE ORDER.

25               “(a) ANNUAL REPORTS REQUIRED.—Not later than

26 April 1 of each year, the Director of National Intelligence

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11

1 shall submit to the congressional intelligence committees

2 a report on violations of law or executive order by per‑

3 sonnel of an element of the intelligence community that

4 were identified during the previous calendar year.

5                   “(b) ELEMENTS.—Each report required subsection

6 (a) shall include a description of any violation of law or

7 executive order (including Executive Order No. 12333 (50

8 U.S.C. 3001 note)) by personnel of an element of the intel‑

9 ligence community in the course of such employment that,

10 during the previous calendar year, was determined by the

11 director, head, general counsel, or inspector general of any

12 element of the intelligence community to have occurred.”.

13              (b) CLERICAL AMENDMENT.—The table of sections

14 in the first section of the National Security Act of 1947

15 is amended by adding after the section relating to section

16 508 the following:

“Sec. 509. Annual report on violations of law or executive order.”.

17 SEC. 10. PERIODIC REVIEW OF INTELLIGENCE COMMUNITY

18                       PROCEDURES FOR THE ACQUISITION, RETEN‑

19                                      TION, AND DISSEMINATION OF INTEL‑

20                           LIGENCE.

21                   (a) IN GENERAL.—Title V of the National Security

22 Act of 1947 (50 U.S.C. 3091 et seq.), as amended by sec‑

23 tion 9, is further amended by adding at the end the fol‑

24 lowing:

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1 “SEC. 510. PERIODIC REVIEW OF INTELLIGENCE COMMU‑

2                      NITY PROCEDURES FOR THE ACQUISITION,

3                  RETENTION, AND DISSEMINATION OF INTEL‑

4                      LIGENCE.

5 “(a) HEAD OF AN ELEMENT OF THE INTELLIGENCE

6 COMMUNITY DEFINED.—In this section, the term ‘head

7 of an element of the intelligence community’ means, as

8 appropriate‑

9                    “(1) the head of an element of the intelligence

10          community; or

11                  “(2) the head of the department or agency con‑

12          taining such element.

13 “(b) REVIEW OF PROCEDURES APPROVED BY THE

14 ATTORNEY GENERAL.‑

15               “(1) REQUIREMENT FOR IMMEDIATE RE‑

16         VIEW.—Each head of an element of the intelligence

17         community that has not obtained the approval of the

18                Attorney General for the procedures, in their en‑

19                tirety, required by section 2.3 of Executive Order

20                 12333 (50 U.S.C. 3001 note) within 5 years prior

21                to the date of the enactment of the FISA Trans‑

22               parency and Modernization Act, shall initiate, not

23              later than 180 days after such date of enactment, a

24         review of the procedures for such element, in accord‑

25          ante with paragraph (3).

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13

1                          “(2) REQUIREMENT FOR REVIEW.—Not less

2            frequently than once every 5 years, each head of an

3          element of the intelligence community shall conduct

4         a review of the procedures approved by the Attorney

5              General for such element that are required by sec‑

6             tion 2.3 of Executive Order 12333 (50 U.S.C. 3001

7               note), or any successor order, in accordance with

8         paragraph (3).

9                    “(3) REQUIREMENTS FOR REVIEWS.—In coordi‑

10         nation with the Director of National Intelligence and

11          the Attorney General, the head of an element of the

12          intelligence community required to perform a review

13         under paragraphs (1) or (2) shall‑

14                            “(A) review existing procedures for such

15                   element that are required by section 2.3 of Ex‑

16                    ecutive Order 12333 (50 U.S.C. 3001 note), or

17                any successor order, to assess whether‑

18                                   “(i) advances in communications or

19                      other technologies since the time the proce‑

20                          dures were most recently approved by the

21                        Attorney General have affected the privacy

22                           protections that the procedures afford to

23                          United States persons, to include the pro‑

24                         tections afforded to United States persons

25                        whose nonpublic communications are inci‑

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1                          dentally acquired by an element of the in‑

2                        telligence community; or

3                                      “(ii) aspects of the existing proce‑

4                          dures impair the acquisition, retention, or

5                          dissemination of timely, accurate, and in‑

6                           sightful information about the activities,

7                            capabilities, plans, and intentions of for‑

8                             eign powers, organization, and persons,

9                        and their agents; and

10                         “(B) propose any modifications to existing

11                procedures for such element in order to‑

12                                   “(i) clarify the guidance such proce‑

13                         dures afford to officials responsible for the

14                       acquisition, retention, and dissemination of

15                        intelligence;

16                                    “(ii) eliminate unnecessary impedi‑

17                             meats to the acquisition, retention, and

18                        dissemination of intelligence; or

19                                    “(iii) ensure appropriate protections

20                             for the privacy of United States persons

21                                and persons located inside the United

22                        States.

23                     “(4) NOTICE.—The Director of National Intel‑

24               ligence and the Attorney General shall notify the

25          congressional intelligence committees following the

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15

1             completion of each review required under this sec‑

2         tion.

3                              “(5) REQUIREMENT TO PROVIDE PROCE‑

4            DUKES.—Upon the implementation of any modifica‑

5          tions to procedures required by section 2.3 of Execu‑

6           tive Order 12333 (50 U.S.C. 3001 note), or any suc‑

7              cessor order, the head of the element of the intel‑

8        ligence community to which the modified procedures

9           apply shall promptly provide a copy of the modified

10         procedures to the congressional intelligence commit‑

11         tees.”.

12               (b) CLERICAL AMENDMENT.—The table of sections

13 in the first section of the National Security Act of 1947,

14 as amended by section 9, is further amended by adding

15 after the section relating to section 509 the following:

“Sec. 510. Periodic review of intelligence community procedures for the acquisi­tion, retention, and dissemination of intelligence.”.

16 SEC. 11. PROCEDURES FOR TARGETED ACQUISITIONS OF

17                    TERRORIST AND FOREIGN AGENT NON-CON‑

18                           TENT COMMUNICATIONS RECORDS.

19              (a) IN GENERAL.—Title V of the Foreign Intelligence

20 Surveillance Act of 1978 (50 U.S.C. 1861 et seq.) is

21 amended by adding at the end the following new section:

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March 25, 2014 (2:42 p.m.)

 

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1 “SEC. 503. PROCEDURES FOR TARGETED ACQUISITIONS OF

2                  TERRORIST AND FOREIGN AGENT NON-CON‑

3                     TENT COMMUNICATIONS RECORDS.

4              “(a) AUTHORIZATION.—Notwithstanding any other

5 provision of law, upon the issuance of an order in accord‑

6 ante with subsection (i)(3) or a determination under sub‑

7 section (c)(2), the Attorney General and the Director of

8 National Intelligence may authorize jointly, for a period

9 of up to 1 year from the effective date of the authoriza‑

10 tion, the acquisition from an electronic communication

11 service provider of records created as a result of commu‑

12 nications of an individual or facility who, based on reason‑

13 able and articulable suspicion, is‑

14                    “(1) a foreign power or the agent of a foreign

15          power;

16                        “(2) associated with a foreign power or the

17          agent of a foreign power; or

18                   “(3) in contact with, or known to, a suspected

19          agent of a foreign power.

20          “(b) LIMITATIONS.—An acquisition authorized under

21 subsection (a) shall be reasonably designed‑

22                “(1) not to acquire‑

23                       “(A) the contents associated with any com‑

24                munication;

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1                         “(B) records of wire or electronic commu‑

2                   nications without the use of specific identifiers

3                or selection terms;

4                          “(C) information for an investigation of a

5                United States person conducted solely upon the

6                  basis of activities protected by the first amend‑

7                ment to the Constitution; or

8                               “(D) the name, address, social security

9                       number, employer or taxpayer identification

10                  number, date of birth, or credit card number of

11                any United States person; and

12                   “(2) to comply with the fourth amendment to

13         the Constitution of the United States.

14            “(c) CONDUCT OF ACQUISITION.‑

15               “(1) IN GENERAL.—An acquisition authorized

16         under subsection (a) shall be conducted only‑

17                          “(A) in accordance with the selection and

18                  civil liberties and privacy protection procedures

19                 adopted in accordance with subsections (d) and

20                (e); and

21                          “(B) upon submission of a certification in

22                accordance with subsection (g).

23                           “(2) DETERMINATION.—A determination under

24           this paragraph and for purposes of subsection (a) is

25         a determination by the Attorney General and the Di‑

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18

1                   rector of National Intelligence that exigent cir‑

2          cumstances exist because, without immediate imple‑

3            mentation of an authorization under subsection (a),

4          intelligence important to the national security of the

5                 United States may be lost or not timely acquired

6               and time does not permit the issuance of an order

7            pursuant to subsection (i)(3) prior to the implemen‑

8          tation of such authorization.

9                    “(3) TIMING OF DETERMINATION.—The Attor‑

10                   ney General and the Director of National Intel‑

11                ligence may make the determination under para‑

12          graph (2)‑

13                               “(A) before the submission of a certifi‑

14                 cation in accordance with subsection (g); or

15                           “(B) by amending a certification pursuant

16                           to subsection (i)(1)(C) at any time during

17                      which judicial review under subsection (i) of

18                 such certification is pending.

19          “(d) SELECTION PROCEDURES.‑

20                    “(1) REQUIREMENT TO ADOPT.—The Attorney

21                General, in consultation with the Director of Na‑

22             tional Intelligence, shall adopt selection procedures

23             that are reasonably designed to ensure that any ac‑

24              quisition authorized under subsection (a) complies

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19

1               with the requirements and limitations relating to

2         such acquisitions under subsections (a) and (b).

3                            “(2) JUDICIAL REVIEW.—The procedures

4              adopted in accordance with paragraph (1) shall be

5           subject to judicial review pursuant to subsection (i).

6                “(e) CIVIL LIBERTIES AND PRIVACY PROTECTION

7 PROCEDURE S.—

8                     “(1) REQUIREMENT TO ADOPT.—The Attorney

9               General, in consultation with the Director of Na‑

10          tional Intelligence, shall adopt civil liberties and pri‑

11              vary protection procedures that are reasonably de‑

12         signed to‑

13                           “(A) minimize the impact of any acquisi‑

14                    tion authorized by (a) on the privacy and civil

15                liberties of United States persons; and

16                              “(B) reasonably limit the receipt, reten‑

17                      tion, use, and disclosure of communications

18                   records associated with a specific person when

19                      such records are not necessary to understand

20                     foreign intelligence information or assess the

21                importance of such information.

22                     “(2) JUDICIAL REVIEW.—The civil liberties and

23          privacy protection procedures adopted in accordance

24          with paragraph (1) shall be subject to judicial review

25         pursuant to subsection (i).

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20

1           “(f) GUIDELINES FOR COMPLIANCE WITH LIMITA‑

2 TIONS.—

3                  “(1) REQUIREMENT TO ADOPT.—The Attorney

4               General, in consultation with the Director of Na‑

5            tional Intelligence, shall adopt guidelines to ensure‑

6                        “(A) compliance with the requirements and

7                limitations under subsections (a) and (b); and

8                           “(B) that an application for a court order

9                is filed as required by this title.

10                  “(2) SUBMISSION OF GUIDELINES.—The Attor‑

11            ney General shall provide the guidelines adopted in

12          accordance with paragraph (1)‑

13                       “(A) the congressional intelligence commit‑

14                tees;

15                            “(B) the Committees on the Judiciary of

16                    the Senate and the House of Representatives;

17                and

18                           “(C) the Foreign Intelligence Surveillance

19                Court.

20          “(g) CERTIFICATION.‑

21                “(1) IN GENERAL.‑

22                        “(A) REQUIREMENT TO SUBMIT CERTIFI‑

23                   CATION.—Subject to subparagraph (B), prior to

24                    the implementation of an authorization under

25                     subsection (a), the Attorney General and the

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21

1                    Director of National Intelligence shall provide

2                 to the Foreign Intelligence Surveillance Court a

3                      written certification and any supporting affi‑

4                  davit, under oath and under seal, in accordance

5                with this subsection.

6                                        “(B) EXCEPTION.—If the Attorney Gen‑

7                     eral and the Director of National Intelligence

8                    make a determination under subsection (c)(2)

9                     and time does not permit the submission of a

10                    certification under this subsection prior to the

. 11                  implementation of an authorization under sub‑

12                 section (a), the Attorney General and the Direc‑

13                   for of National Intelligence shall submit to the

14                    Court a certification for such authorization as

15                     soon as practicable but in no event later than

16                     7 days after such determination is made.

17                       “(2) CERTIFICATION REQUIREMENTS.—A cer‑

18         tification made under this subsection shall‑

19                        “(A) attest that‑

20                                   “(i) procedures have been approved,

21                           have been submitted for approval, or will

22                          be submitted with the certification for ap‑

23                         proval by the Foreign Intelligence Surveil‑

24                            lance Court that are reasonably designed

25                              to ensure compliance with the require‑

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22

1                            ments and limitations under subsections

2                        (a) and (b).

3                               “(ii) the civil liberties and privacy pro‑

4                          tection procedures to be used with respect

5                        to such acquisition‑

6                                             “(I) meet the requirements of

7                                   civil liberties and privacy protection

8                                 procedures adopted under subsection

9                               (e); and

10                                           “(II) have been approved, have

11                               been submitted for approval, or will be

12                                    submitted with the certification for

13                                  approval by the Foreign Intelligence

14                               Surveillance Court;

15                                 “(iii) guidelines have been adopted in

16                            accordance with subsection (f) to ensure

17                             compliance with the limitations in sub‑

18                           section (b) and to ensure that an applica‑

19                             tion for a court order is filed as required

20                        by this chapter;

21                               “(iv) the procedures and guidelines re‑

22                              (erred to in clauses (i), (ii), and (iii) are

23                             consistent with the requirements of the

24                          fourth amendment to the Constitution of

25                        the United States;

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23

1                                   “(v) a significant purpose of the ac‑

2                             quisition is to obtain foreign intelligence

3                            information; (vi) the acquisition involves

4                          obtaining foreign intelligence information

5                        from or with the assistance of an electronic

6                        communications service provider; and

7                                “(vi) the acquisition complies with the

8                        limitations in subsection (b);

9                         “(B) include the procedures adopted in ac‑

10                cordance with subsections (d) and (e);

11                           “(C) be supported, as appropriate, by the

12                    affidavit of any appropriate official in the area

13                of national security who is‑

14                                     “(i) appointed by the President, by

15                              and with the advice and consent of the

16                        Senate; or

17                                “(ii) the head of an element of the in‑

18                        telligence community;

19                        “(D) include‑

20                                   “(i) an effective date for the author‑

21                               ization that is at least 30 days after the

22                           submission of the written certification to

23                        the court; or

24                                     “(ii) if the acquisition has begun or

25                         the effective date is less than 30 days after

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24

1                         the submission of the written certification

2                        to the court, the date the acquisition began

3                             or the effective date for the acquisition;

4                        and

5                            “(E) if the Attorney General and the Di‑

6                      rector of National Intelligence make a deter‑

7                        mination under subsection (c)(2), include a

8                       statement that such determination has been

9                made.

10                       “(3) CHANGE IN EFFECTIVE DATE.—The At‑

11              torney General and the Director of National Intel‑

12             ligence may advance or delay the effective date re‑

13                   (erred to in paragraph (2)(D) by submitting an

14          amended certification in accordance with subsection

15                (i)(1)(C) to the Foreign Intelligence Surveillance

16          Court for review pursuant to subsection (i).

17                       “(4) MAINTENANCE OF CERTIFICATION.—The

18         Attorney General or a designee of the Attorney Gen‑

19               eral shall maintain a copy of a certification made

20          under this subsection.

21                        “(5) JUDICIAL REVIEW.—A certification sub‑

22              mitted in accordance with this subsection shall be

23           subject to judicial review pursuant to subsection (i).

24          “(h) DIRECTIVES.—

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25

1                “(1) AUTHORITY.—With respect to an acquisi‑

2             tion authorized under subsection (a), the Attorney

3               General and the Director of National Intelligence

4         may direct, in writing, an electronic communications

5         service provider to‑

6                         “(A) immediately provide the Government

7                  with records, whether existing or created in the

8                    future, in the format specified by the Govern‑

9                    meat and in a manner that will protect the se‑

10                crecy of the acquisition; and

11                            “(B) maintain under security procedures

12                    approved by the Attorney General and the Di‑

13                  rector of National Intelligence any records con‑

14                    cerning the aid furnished that such electronic

15                communication service provider retains.

16            “(2) COMPENSATION AND ASSISTANCE.—The

17         Government shall compensate, at the prevailing rate,

18              an electronic communications service provider for

19                  providing records in accordance with directives

20             issued pursuant to paragraph (1). The Government

21         may provide any information, facilities, or assistance

22          necessary to aid an electronic communications serv‑

23         ice provider in complying with a directive issued pur‑

24         suant to paragraph (1).

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26

1                        “(3) RECORD REQUIREMENT.—For any direc‑

2            tive issued under paragraph (1), the Attorney Gen‑

3                eral shall retain a record of the information indi‑

4          eating that, at the time the directive was issued, the

5           directive complied with the selection procedures es‑

6          tablished by subsection (d).

7                “(4) JUDICIAL REVIEW.‑

8                              “(A) REQUIREMENT TO PROVIDE DIREC‑

9                    TIVES AND SUPPORTING RECORDS.—The Attor‑

10                 ney General shall promptly provide to the court

11                 established by section 103 (a) a copy of each di‑

12                     rective issued under paragraph (1) and a copy

13                of each record prepared under paragraph (3).

14                                   “(B) REMEDY FOR IMPROPER DIREC‑

15                TryEs.—The court shall promptly consider each

16                      directive and record provided under subpara‑

17                    graph (A), and if the court finds that a record

18                       prepared under paragraph (3) does not meet

19                 the requirements of the selection procedures es‑

20                 tablished by subsection (d), the court may order

21                   that the production of records under the appli‑

22                   cable directive be terminated or modified, that

23                 the information produced in response to the di‑

24                        rective be destroyed, or another appropriate

25                remedy.

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27

1                “(5) CHALLENGING OF DIRECTIVES.‑

2                                “(A) AUTHORITY TO CHALLENGE.—An

3                electronic communications service provider re‑

4                ceiving a directive issued pursuant to paragraph

5                (1) may file a petition to modify or set aside

6                such directive with the Foreign Intelligence

7                Surveillance Court, which shall have jurisdiction

8                to review such petition.

9                              “(B) ASSIGNMENT.—The presiding judge

10                of the Court shall assign a petition filed under

11                subparagraph (A) to 1 of the judges serving in

12                the pool established under section 103(e)(1) not

13                later than 24 hours after the filing of such peti‑

14                tion.

15                             “(C) STANDARDS FOR REVIEW.—A judge

16                considering a petition filed under subparagraph

17                (A) may grant such petition only if the judge

18                finds that the directive does not meet the re‑

19                quirements of this section or is otherwise un‑

20                lawful.

21                                      “(D) PROCEDURES FOR INITIAL RE‑

22                VIEW. —A judge shall conduct an initial review

23                of a petition filed under subparagraph (A) not

24                later than 5 days after being assigned such pe‑

25                tition. If the judge determines that such peti‑

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28

1                tion consists of claims, defenses, or other legal

2                contentions that are not warranted by existing

3                law or consists of a frivolous argument for ex‑

4                tending, modifying, or reversing existing law or

5                for establishing new law, the judge shall imme‑

6                diately deny such petition and affirm the direc‑

7                tive or any part of the directive that is the sub‑

8                ject of such petition and order the recipient to

9                comply with the directive or any part of it.

10                Upon making a determination under this sub‑

11                paragraph or promptly thereafter, the judge

12                shall provide a written statement for the record

13                of the reasons for such determination.

14                               “(E) PROCEDURES FOR PLENARY RE‑

15                    VIEW.-If a judge determines that a petition

16                filed under subparagraph (A) requires plenary

17                review, the judge shall affirm, modify, or set

18                aside the directive that is the subject of such

19                petition not later than 30 days after being as‑

20                signed such petition. If the judge does not set

21                aside the directive, the judge shall immediately

22                affirm or affirm with modifications the three‑

23                tive, and order the recipient to comply with the

24                directive in its entirety or as modified. The

25                judge shall provide a written statement for the

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29

1                record of the reasons for a determination under

2                this subparagraph.

3                              “(F) CONTINUED EFFECT.—Any directive

4                not explicitly modified or set aside under this

5                paragraph shall remain in full effect.

6                                 “(G) CONTEMPT OF COURT.—Failure to

7                obey an order issued under this paragraph may

8                be punished by the Court as contempt of court.

9                “(6) ENFORCEMENT OF DIRECTIVES.‑

10                           “(A) ORDER TO COMPEL.—If an electronic

11                communications service provider fails to comply

12                with a directive issued pursuant to paragraph

13                (1), the Attorney General may file a petition for

14                an order to compel the service to comply with

15                the directive with the Foreign Intelligence Sur‑

16                veillance Court, which shall have jurisdiction to

17                review such petition.

18                              “(B) ASSIGNMENT.—The presiding judge

19                of the Court shall assign a petition filed under

20                subparagraph (A) to 1 of the judges serving in

21                the pool established under section 103(c)(1) not

22                later than 24 hours after the filing of such peti‑

23                tion.

24                           “(C) PROCEDURES FOR REVIEW. —A judge

25                considering a petition filed under subparagraph

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30

1                   (A) shall, not later than 30 days after being as‑

2                     signed such petition, issue an order requiring

3                  the electronic communications service provider

4                     to comply with the directive or any part of it,

5                  as issued or as modified, if the judge finds that

6                the directive meets the requirements of this sec‑

7                      tion and is otherwise lawful. The judge shall

8                      provide a written statement for the record of

9                          the reasons for a determination under this

10                paragraph.

11                        “(D) CONTEMPT OF COURT.—Failure to

12                   obey an order issued under this paragraph may

13                 be punished by the Court as contempt of court.

14                           “(E) PROCESS.—Any process under this

15                  paragraph may be served in any judicial district

16                 in which the electronic communications service

17                provider may be found.

18                “(7) APPEAL.‑

19                            “(A) APPEAL TO THE COURT OF RE‑

20                VIEW.—The Government or an electronic corn‑

21                   munications service provider receiving a direc‑

22                    tive issued pursuant to paragraph (1) may file

23                 a petition with the Foreign Intelligence Surveil‑

24                   lance Court of Review for review of a decision

25                       issued pursuant to paragraph (4) or (5). The

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31

1                            Court of Review shall have jurisdiction to con‑

2                              sider such petition and shall provide a written

3                                 statement for the record of the reasons for a

4                     decision under this subparagraph.

5                                          “(B) CERTIORARI TO THE SUPREME

6                      COURT.—The Government or an electronic corn‑

7                           munications service provider receiving a three‑

8                              tive issued pursuant to paragraph (1) may file

9                              a petition for a writ of certiorari for review of

10                            a decision of the Court of Review issued under

11                              subparagraph (A). The record for such review

12                             shall be transmitted under seal to the Supreme

13                           Court of the United States, which shall have ju‑

14                     risdiction to review such decision.

15                             “(8) RULE OF CONSTRUCTION.—Nothing in

16                 this subsection shall be construed to prevent a direc‑

17                       tive issued under paragraph (1) from requiring an

18                            electronic communications service provider to

19                   produce additional records, whether existing or cre‑

20                      ated in the future, based on records produced by a

21           previous directive issued under paragraph (1).

22                  “(i) JUDICIAL REVIEW OF CERTIFICATIONS AND

23 PROCEDURES.‑

24                     “(1) IN GENERAL.—

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1                                 “(A) REVIEW BY THE FOREIGN INTEL‑

2                 LIGENCE SURVEILLANCE COURT.—The Foreign

3                 Intelligence Surveillance Court shall have juris‑

4                diction to review a certification submitted in ac‑

5                   cordance with subsection (g) and the selection

6                  and civil liberties and privacy protection proce‑

7                    dures adopted in accordance with subsections

8                      (d) and (e), and amendments to such certifi‑

9                cation or such procedures.

10                               “(B) TIME PERIOD FOR REVIEW.—The

11                   Court shall review a certification submitted in

12                accordance with subsection (g) and the selection

13                  and civil liberties and privacy protection proce‑

14                    dures adopted in accordance with subsections

15                  (d) and (e) and shall complete such review and

16                        issue an order under paragraph (3) not later

17                   than 30 days after the date on which such cer‑

18                tification and such procedures are submitted.

19                            “(C) AMENDMENTS.—The Attorney Gen‑

20                     oral and the Director of National Intelligence

21                 may amend a certification submitted in accord‑

22                      ante with subsection (g) or the selection and

23                  civil liberties and privacy protection procedures

24                  adopted in accordance with subsections (d) and

25                      (e) as necessary at any time, including if the

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33

1                Court is conducting or has completed review of

2                such certification or such procedures, and shall

3                submit the amended certification or amended

4                procedures to the Court not later than 7 days

5                after amending such certification or such proce‑

6                dures. The Court shall review any amendment

7                under this subparagraph under the procedures

8                set forth in this subsection. The Attorney Gen‑

9                eral and the Director of National Intelligence

10                may authorize the use of an amended certifi‑

11                cation or amended procedures pending the

12                Court’s review of such amended certification or

13                amended procedures.

14                “(2) REVIEW.—The Court shall review the fol‑

15         lowing:

16                     “(A) CERTIFICATION.—A certification sub‑

17                mitted in accordance with subsection (g) to de‑

18                termine whether the certification contains all

19                the required elements.

20                       “(B) SELECTION PROCEDURES.—The se‑

21                lection procedures adopted in accordance with

22                subsection (d) to assess whether the procedures

23                are reasonably designed to meet the require‑

24                meats of subsection (d).

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1                      “(C) CIVIL LIBERTIES AND PRIVACY PRO‑

2                 TECTION PROCEDURES.—The civil liberties and

3                      privacy protection procedures adopted in ac‑

4                  cordance with subsection (e) to assess whether

5                  such procedures meet the requirements of sub‑

6                section (e).

7                “(3) ORDERS.‑

8                          “(A) APPROVAL.—If the Court finds that

9                      a certification submitted in accordance with

10                        subsection (g) contains all the required ele‑

11                   ments and that the selection and civil liberties

12                     and privacy protection procedures adopted in

13                        accordance with subsections (d) and (e) are

14                  consistent with the requirements of those sub‑

15                 sections and with the fourth amendment to the

16                      Constitution of the United States, the Court

17                   shall enter an order approving the certification

18                  and the use, or continued use in the case of an

19                 acquisition authorized pursuant to a determina‑

20                   tion under subsection (c)(2), of the procedures

21                for the acquisition.

22                       “(B) CORRECTION OF DEFICIENCIES.—If

23                 the Court finds that a certification submitted in

24                accordance with subsection (g) does not contain

25                       all the required elements, or that the proce‑

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1                    dures adopted in accordance with subsections

2                    (d) and (e) are not consistent with the require‑

3                            meats of those subsections or the fourth

4                    amendment to the Constitution of the United

5                     States, the Court shall issue an order directing

6                   the Government to, at the Government’s elec‑

7                     tion and to the extent required by the Court’s

8                 order‑

9                                    “(i) correct any deficiency identified

10                         by the Court’s order not later than 30 days

11                             after the date on which the Court issues

12                       the order; or

13                                     “(ii) cease, or not begin, the imple‑

14                           mentation of the authorization for which

15                       such certification was submitted.

16          “(C) REQUIREMENT FOR WRITTEN STATE –

17              MENT .—In support of an order under this sub‑

18                  section, the Court shall provide, simultaneously

19                     with the order, for the record a written state‑

20                ment of the reasons for the order.

21                “(4) APPEAL.‑

22                        “(A) APPEAL TO THE COURT OF RE‑

23                   VIEW .—The Government may file a petition

24                 with the Foreign Intelligence Surveillance Court

25                of Review for review of an order under this sub‑

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36

1                             section. The Court of Review shall have juris‑

2                            diction to consider such petition. For any deci‑

3                           sion under this subparagraph affirming, revers‑

4                            ing, or modifying an order of the Foreign Intel‑

5                          ligence Surveillance Court, the Court of Review

6                           shall provide for the record a written statement

7                    of the reasons for the decision.

8                                     “(B) CONTINUATION OF ACQUISITION

9                   PENDING REHEARING OR APPEAL.—Any acqui‑

10                                  sition affected by an order under paragraph

11                    (3)(B) may continue‑

12                                                 “(i) during the pendency of any re‑

13                                    hearing of the order by the Court en bane;

14                              and

15                                           “(ii) if the Government files a petition

16                                      for review of an order under this section,

17                                      until the Court of Review enters an order

18                              under subparagraph (C).

19                                      “(C) IMPLEMENTATION PENDING AP‑

20                              PEAL.—Not later than 60 days after the filing

21                            of a petition for review of an order under para‑

22                             graph (3)(B) directing the correction of a defi‑

23                                ciency, the Court of Review shall determine,

24                                   and enter a corresponding order regarding,

25                            whether all or any part of the correction order,

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1                as issued or modified, shall be implemented

2                during the pendency of the review.

3                                     “(D) CERTIORARI TO THE SUPREME

4                COURT.—The Government may file a petition

5                for a writ of certiorari for review of a decision

6                of the Court of Review issued under subpara‑

7                graph (A). The record for such review shall be

8                transmitted under seal to the Supreme Court of

9                the United States, which shall have jurisdiction

10                to review such decision.

11                “(5) SCHEDULE.‑

12                            “(A) REAUTHORIZATION OF AUTHORIZA‑

13                TIONS IN EFFECT.—If the Attorney General

14                and the Director of National Intelligence seek

15                to reauthorize or replace an authorization

16                issued under subsection (a), the Attorney Gen‑

17                eral and the Director of National Intelligence

18                shall, to the extent practicable, submit to the

19                Court the certification prepared in accordance

20                with subsection (g) and the procedures adopted

21                in accordance with subsections (d) and (e) at

22                least 30 days prior to the expiration of such au‑

23                thorization.

24                            “(B) REAUTHORIZATION OF ORDERS, AU‑

25                THORIZATIONS, AND DIRECTIVES.—If the At‑

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1                  torney General and the Director of National In‑

2                   telligence seek to reauthorize or replace an au‑

3                 thorization issued under subsection (a) by filing

4                      a certification pursuant to subparagraph (A),

5                      that authorization, and any directives issued

6                   thereunder and any order related thereto, shall

7                remain in effect, notwithstanding the expiration

8                    provided for in subsection (a), until the Court

9                        issues an order with respect to such certifi‑

10                     cation under paragraph (3) at which time the

11                   provisions of that paragraph and paragraph (4)

12                shall apply with respect to such certification.

13          “(j) JUDICIAL PROCEEDINGS.‑

14                    “(1) EXPEDITED JUDICIAL PROCEEDINGS.-Ju‑

15              dicial proceedings under this section shall be con‑

16          ducted as expeditiously as possible.

17                       “(2) TIME LIMITS.-A time limit for a judicial

18          decision in this section shall apply unless the Court,

19                  the Court of Review, or any judge of either the

20             Court or the Court of Review, by order for reasons

21                   stated, extends that time as necessary for good

22          cause in a manner consistent with national security.

23              “(k) MAINTENANCE AND SECURITY OF RECORDS

24 AND PROCEEDINGS.-

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1                        “(1) STANDARDS.—The Foreign Intelligence

2            Surveillance Court shall maintain a record of a pro‑

3             seeding under this section, including petitions, ap‑

4             peals, orders, and statements of reasons for a deci‑

5            sion, under security measures adopted by the Chief

6               Justice of the United States, in consultation with

7             the Attorney General and the Director of National

8         Intelligence.

9                     “(2) FILING AND REVIEW.—All petitions under

10                this section shall be filed under seal. In any pro‑

11         ceedings under this section, the Court shall, upon re‑

12                quest of the Government, review ex parte and in

13            camera any Government submission, or portions of

14          a submission, which may include classified informa‑

15         tion.

16                       “(3) RETENTION OF RECORDS.—The Attorney

17               General and the Director of National Intelligence

18            shall retain a directive or an order issued under this

19              section for a period of not less than 10 years from

20                the date on which such directive or such order is

21         issued.

22         “(1) ASSESSMENTS AND REVIEWS.‑

23                      “(1) SEMIANNUAL ASSESSMENT.—Not less fre‑

24                quently than once every 6 months, the Attorney

25             General and Director of National Intelligence shall

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1               assess compliance with the selection and civil lib‑

2           erties and privacy protection procedures adopted in

3                accordance with subsections (d) and (e) and the

4         guidelines adopted in accordance with subsection (f).

5                  The assessment shall also include the aggregate

6                number of directives issued under subsection (h)

7           during the relevant time period. The Attorney Gen‑

8           eral and Director of National Intelligence shall sub‑

9          mit each assessment to‑

10                           “(A) the Foreign Intelligence Surveillance

11                Court; and

12                                 “(B) consistent with the Rules of the

13                    House of Representatives, the Standing Rules

14                 of the Senate, and Senate Resolution 400 of the

15                   94th Congress or any successor Senate resolu‑

16                tion‑

17                                       “(i) the congressional intelligence

18                        committees; and

19                                 “(ii) the Committees on the Judiciary

20                            of the House of Representatives and the

21                        Senate.

22                           “(2) AGENCY ASSESSMENT.—The Inspector

23              General of the Department of Justice and the In‑

24            spector General of each element of the intelligence

25             community authorized to acquire communications

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1          records under subsection (a), with respect to the de‑

2         partment or element of such Inspector General‑

3                           “(A) are authorized to review compliance

4                  with the selection and civil liberties and privacy

5                    protection procedures adopted in accordance

6                   with subsections (d) and (e) and the guidelines

7                adopted in accordance with subsection (f);

8                        “(B shall provide each such review to‑

9                               “(i) the Attorney General;

10                                    “(ii) the Director of National Intel‑

11                        ligence; and

12                                 “(iii) consistent with the Rules of the

13                             House of Representatives, the Standing

14                        Rules of the Senate, and Senate Resolution

15                         400 of the 94th Congress or any successor

16                        Senate resolution‑

17                                      “(I) the congressional intelligence

18                               committees; and

19                                         “(II) the Committees on the Ju‑

20                                   diciary of the House of Representa‑

21                               tives and the Senate.

22         “(m) DEFINITIONS.—In this section:

23                       “(1) The terms ‘contents’, ‘wire communica‑

24        Lion’, and ‘electronic communication’ have the mean‑

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1                ing given such terms in section 2510 of title 18,

2          United States Code.

3                   “(2) The term ‘electronic communication serv‑

4               ice provider’ has the meaning given such term in

5          section 701.

6                     “(3) The terms ‘foreign power’ and ‘agent of a

7           foreign power’ have the meanings given such terms

8          in section 101.”.

9     (b) CLERICAL AMENDMENT.—The table of contents

10 in the first section of the Foreign Intelligence Surveillance

11 Act of 1978 (50 U.S.C. 1801 note) is amended by insert‑

12 ing after the item relating to section 502 the following

13 new item:

“See. 503. Procedures for targeted acquisitions of terrorist and foreign agent non-content communications records.”.

14    (c) CONFORMING AMENDMENT.—Section 802(a)(3)

15 of the Foreign Intelligence Surveillance Act of 1978 (50

16 U.S.C. 1885a) is amended by striking “or 702(h)” and

17 inserting “503(h), or 702(h)”.

18 SEC. 12. CONTINUOUS EVALUATION AND SHARING OF DE‑

19                        ROGATORY INFORMATION REGARDING PER‑

20                         SONNEL WITH ACCESS TO CLASSIFIED IN‑

21                     FORMATION.

22         Section 102A(j) of the National Security Act of 1947

23 (50 U.S.C. 3024 (j ) ) is amended‑

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1                                   (1) in the heading, by striking “SENSITIVE

2                  COMPARTMENTED INFORMATION” and inserting

3               “CLASSIFIED INFORMATION”;

4                                  (2) in paragraph (3), by striking “; and” and

5           inserting a semicolon;

6                            (3) in paragraph (4), by striking the period and

7           inserting a semicolon; and

8                                    (4) by adding at the end the following new

9           paragraphs:

10                                 “(5) ensure that the background of each em‑

11                       ployee or officer of an element of the intelligence

12                   community, each contractor to an element of the in‑

13                 telligence community, and each individual employee

14                    of such a contractor who has been determined to be

15                    eligible for access to classified information is mon‑

16                      itored on a continual basis under standards devel‑

17                      oped by the Director, including with respect to the

18                     frequency of evaluation, during the period of eligi‑

19                     bility of such employee or officer of an element of

20                  the intelligence community, such contractor, or such

21                      individual employee to such a contractor to deter‑

22                mine whether such employee or officer of an element

23                    of the intelligence community, such contractor, and

24                    such individual employee of such a contractor con‑

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1          tinues to meet the requirements for eligibility for ac‑

2          cess to classified information; and

3                “(6) develop procedures to require information

4          sharing between elements of the intelligence commu‑

5          nity concerning potentially derogatory security infor‑

6          mation regarding an employee or officer of an ele‑

7          ment of the intelligence community, a contractor to

8          an element of the intelligence community, or an indi‑

9          vidual employee of such a contractor that may im‑

10          pact the eligibility of such employee or officer of an

11          element of the intelligence community, such con‑

12          tractor, or such individual employee of such a con‑

13          tractor for a security clearance.”.

14 SEC. 13. REQUIREMENTS FOR INTELLIGENCE COMMUNITY

15                     CONTRACTORS.

16          (a) REQUIREMENTS.—Section 102A of the National

17 Security Act of 1947 (50 U.S.C. 3024) is amended by

18 adding at the end the following new subsection:

19             “(x) REQUIREMENTS FOR INTELLIGENCE COMMU‑

20 NITY CONTRACTORS.—The Director of National Intel‑

21 ligence, in consultation with the head of each department

22 of the Federal Government that contains an element of

23 the intelligence community and the Director of the Central

24 Intelligence Agency, shall‑

25                “(1) ensure that‑

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1                            “(A) any contractor to an element of the

2                  intelligence community with access to a classi‑

3                  fled network or classified information develops

4                    and operates a security plan that is consistent

5                      with standards established by the Director of

6               National Intelligence for intelligence community

7                networks; and

8                          “(B) each contract awarded by an element

9                    of the intelligence community includes provi‑

10                sions requiring the contractor comply with such

11                plan and such standards;

12                 “(2) conduct periodic assessments of each secu‑

13           rity plan required under paragraph (1) (A) to ensure

14         such security plan complies with the requirements of

15         such paragraph; and

16                  “(3) ensure that the insider threat detection ca‑

17                 pabilities and insider threat policies of the intel‑

18           ligence community apply to facilities of contractors

19         with access to a classified network.”.

20             (b) APPLICABILITY.—The amendment made by sub‑

21 section (a) shall apply with respect to contracts entered

22 into or renewed after the date of the enactment of this

23 Act.

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Categories: Govenance & Privacy

Executive Order 12333–United States Intelligence Activities

March 20th, 2014 No comments

Executive Order 12333–United States intelligence activities

Source: The provisions of Executive Order 12333 of Dec. 4, 1981, appear at 46 FR 59941, 3 CFR, 1981 Comp., p. 200, unless otherwise noted.

Table of Contents

Preamble

Part 1.Goals, Direction, Duties, and Responsibilities With Respect to the National Intelligence Effort
1.1 Goals
1.2 The National Security Council
1.3 National Foreign Intelligence Advisory Groups
1.4 The Intelligence Community
1.5 Director of Central Intelligence
1.6 Duties and Responsibilities of the Heads of Executive Branch Departments and Agencies
1.7 Senior Officials of the Intelligence Community
1.8 The Central Intelligence Agency
1.9 The Department of State
1.10 The Department of the Treasury
1.11 The Department of Defense
1.12 Intelligence Components Utilized by the Secretary of Defense
1.13 The Department of Energy
1.14 The Federal Bureau of Investigation
Part 2.Conduct of Intelligence Activities
2.1 Need
2.2 Purpose
2.3 Collection of Information
2.4 Collection Techniques
2.5 Attorney General Approval
2.6 Assistance to Law Enforcement Authorities
2.7 Contracting
2.8 Consistency With Other Laws
2.9 Undisclosed Participation in Organizations Within the United States
2.10 Human Experimentation
2.11 Prohibition on Assassination
2.12 Indirect Participation
Part 3.General Provisions
3.1 Congressional Oversight
3.2 Implementation
3.3 Procedures
3.4 Definitions
3.5 Purpose and Effect
3.6 Revocation

Timely and accurate information about the activities, capabilities, plans, and intentions of foreign powers, organizations, and persons and their agents, is essential to the national security of the United States. All reasonable and lawful means must be used to ensure that the United States will receive the best intelligence available. For that purpose, by virtue of the authority vested in me by the Constitution and statutes of the United States of America, including the National Security Act of 1947, as amended, and as President of the United States of America, in order to provide for the effective conduct of United States intelligence activities and the protection of constitutional rights, it is hereby ordered as follows:

Part 1

Goals, Direction, Duties and Responsibilities With Respect to the National Intelligence Effort

1.1Goals. The United States intelligence effort shall provide the President and the National Security Council with the necessary information on which to base decisions concerning the conduct and development of foreign, defense and economic policy, and the protection of United States national interests from foreign security threats. All departments and agencies shall cooperate fully to fulfill this goal.
(a) Maximum emphasis should be given to fostering analytical competition among appropriate elements of the Intelligence Community.
(b) All means, consistent with applicable United States law and this Order, and with full consideration of the rights of United States persons, shall be used to develop intelligence information for the President and the National Security Council. A balanced approach between technical collection efforts and other means should be maintained and encouraged.
(c) Special emphasis should be given to detecting and countering espionage and other threats and activities directed by foreign intelligence services against the United States Government, or United States corporations, establishments, or persons.
(d) To the greatest extent possible consistent with applicable United States law and this Order, and with full consideration of the rights of United States persons, all agencies and departments should seek to ensure full and free exchange of information in order to derive maximum benefit from the United States intelligence effort.

1.2The National Security Council.
(a) Purpose. The National Security Council (NSC) was established by the National Security Act of 1947 to advise the President with respect to the integration of domestic, foreign and military policies relating to the national security. The NSC shall act as the highest Executive Branch entity that provides review of, guidance for and direction to the conduct of all national foreign intelligence, counterintelligence, and special activities, and attendant policies and programs.
(b) Committees. The NSC shall establish such committees as may be necessary to carry out its functions and responsibilities under this Order. The NSC, or a committee established by it, shall consider and submit to the President a policy recommendation, including all dissents, on each special activity and shall review proposals for other sensitive intelligence operations.

1.3National Foreign Intelligence Advisory Groups.
(a) Establishment and Duties. The Director of Central Intelligence shall establish such boards, councils, or groups as required for the purpose of obtaining advice from within the Intelligence Community concerning:
(1) Production, review and coordination of national foreign intelligence;
(2) Priorities for the National Foreign Intelligence Program budget;
(3) Interagency exchanges of foreign intelligence information;
(4) Arrangements with foreign governments on intelligence matters;
(5) Protection of intelligence sources and methods;
(6) Activities of common concern; and
(7) Such other matters as may be referred by the Director of Central Intelligence.
(b) Membership. Advisory groups established pursuant to this section shall be chaired by the Director of Central Intelligence or his designated representative and shall consist of senior representatives from organizations within the Intelligence Community and from departments or agencies containing such organizations, as designated by the Director of Central Intelligence. Groups for consideration of substantive intelligence matters will include representatives of organizations involved in the collection, processing and analysis of intelligence. A senior representative of the Secretary of Commerce, the Attorney General, the Assistant to the President for National Security Affairs, and the Office of the Secretary of Defense shall be invited to participate in any group which deals with other than substantive intelligence matters.

1.4The Intelligence Community. The agencies within the Intelligence Community shall, in accordance with applicable United States law and with the other provisions of this Order, conduct intelligence activities necessary for the conduct of foreign relations and the protection of the national security of the United States, including:
(a) Collection of information needed by the President, the National Security Council, the Secretaries of State and Defense, and other Executive Branch officials for the performance of their duties and responsibilities;
(b) Production and dissemination of intelligence;
(c) Collection of information concerning, and the conduct of activities to protect against, intelligence activities directed against the United States, international terrorist and international narcotics activities, and other hostile activities directed against the United States by foreign powers, organizations, persons, and their agents;
(d) Special activities;
(e) Administrative and support activities within the United States and abroad necessary for the performance of authorized activities; and
(f) Such other intelligence activities as the President may direct from time to time.

1.5Director of Central Intelligence. In order to discharge the duties and responsibilities prescribed by law, the Director of Central Intelligence shall be responsible directly to the President and the NSC and shall:
(a) Act as the primary adviser to the President and the NSC on national foreign intelligence and provide the President and other officials in the Executive Branch with national foreign intelligence;
(b) Develop such objectives and guidance for the Intelligence Community as will enhance capabilities for responding to expected future needs for national foreign intelligence;
(c) Promote the development and maintenance of services of common concern by designated intelligence organizations on behalf of the Intelligence Community;
(d) Ensure implementation of special activities;
(e) Formulate policies concerning foreign intelligence and counterintelligence arrangements with foreign governments, coordinate foreign intelligence and counterintelligence relationships between agencies of the Intelligence Community and the intelligence or internal security services of foreign governments, and establish procedures governing the conduct of liaison by any department or agency with such services on narcotics activities;
(f) Participate in the development of procedures approved by the Attorney General governing criminal narcotics intelligence activities abroad to ensure that these activities are consistent with foreign intelligence programs;
(g) Ensure the establishment by the Intelligence Community of common security and access standards for managing and handling foreign intelligence systems, information, and products;
(h) Ensure that programs are developed which protect intelligence sources, methods, and analytical procedures;
(i) Establish uniform criteria for the determination of relative priorities for the transmission of critical national foreign intelligence, and advise the Secretary of Defense concerning the communications requirements of the Intelligence Community for the transmission of such intelligence;
(j) Establish appropriate staffs, committees, or other advisory groups to assist in the execution of the Director’s responsibilities;
(k) Have full responsibility for production and dissemination of national foreign intelligence, and authority to levy analytic tasks on departmental intelligence production organizations, in consultation with those organizations, ensuring that appropriate mechanisms for competitive analysis are developed so that diverse points of view are considered fully and differences of judgment within the Intelligence Community are brought to the attention of national policymakers;
(l) Ensure the timely exploitation and dissemination of data gathered by national foreign intelligence collection means, and ensure that the resulting intelligence is disseminated immediately to appropriate government entities and military commands;
(m) Establish mechanisms which translate national foreign intelligence objectives and priorities approved by the NSC into specific guidance for the Intelligence Community, resolve conflicts in tasking priority, provide to departments and agencies having information collection capabilities that are not part of the National Foreign Intelligence Program advisory tasking concerning collection of national foreign intelligence, and provide for the development of plans and arrangements for transfer of required collection tasking authority to the Secretary of Defense when directed by the President;
(n) Develop, with the advice of the program managers and departments and agencies concerned, the consolidated National Foreign Intelligence Program budget, and present it to the President and the Congress;
(o) Review and approve all requests for reprogramming National Foreign Intelligence Program funds, in accordance with guidelines established by the Office of Management and Budget;
(p) Monitor National Foreign Intelligence Program implementation, and, as necessary, conduct program and performance audits and evaluations;
(q) Together with the Secretary of Defense, ensure that there is no unnecessary overlap between national foreign intelligence programs and Department of Defense intelligence programs consistent with the requirement to develop competitive analysis, and provide to and obtain from the Secretary of Defense all information necessary for this purpose;
(r) In accordance with law and relevant procedures approved by the Attorney General under this Order, give the heads of the departments and agencies access to all intelligence, developed by the CIA or the staff elements of the Director of Central Intelligence, relevant to the national intelligence needs of the departments and agencies; and
(s) Facilitate the use of national foreign intelligence products by Congress in a secure manner.

1.6Duties and Responsibilities of the Heads of Executive Branch Departments and Agencies.
(a) The heads of all Executive Branch departments and agencies shall, in accordance with law and relevant procedures approved by the Attorney General under this Order, give the Director of Central Intelligence access to all information relevant to the national intelligence needs of the United States, and shall give due consideration to the requests from the Director of Central Intelligence for appropriate support for Intelligence Community activities.
(b) The heads of departments and agencies involved in the National Foreign Intelligence Program shall ensure timely development and submission to the Director of Central Intelligence by the program managers and heads of component activities of proposed national programs and budgets in the format designated by the Director of Central Intelligence, and shall also ensure that the Director of Central Intelligence is provided, in a timely and responsive manner, all information necessary to perform the Director’s program and budget responsibilities.
(c) The heads of departments and agencies involved in the National Foreign Intelligence Program may appeal to the President decisions by the Director of Central Intelligence on budget or reprogramming matters of the National Foreign Intelligence Program.

1.7Senior Officials of the Intelligence Community. The heads of departments and agencies with organizations in the Intelligence Community or the heads of such organizations, as appropriate, shall:
(a) Report to the Attorney General possible violations of federal criminal laws by employees and of specified federal criminal laws by any other person as provided in procedures agreed upon by the Attorney General and the head of the department or agency concerned, in a manner consistent with the protection of intelligence sources and methods, as specified in those procedures;
(b) In any case involving serious or continuing breaches of security, recommend to the Attorney General that the case be referred to the FBI for further investigation;
(c) Furnish the Director of Central Intelligence and the NSC, in accordance with applicable law and procedures approved by the Attorney General under this Order, the information required for the performance of their respective duties;
(d) Report to the Intelligence Oversight Board, and keep the Director of Central Intelligence appropriately informed, concerning any intelligence activities of their organizations that they have reason to believe may be unlawful or contrary to Executive order or Presidential directive;
(e) Protect intelligence and intelligence sources and methods from unauthorized disclosure consistent with guidance from the Director of Central Intelligence;
(f) Disseminate intelligence to cooperating foreign governments under arrangements established or agreed to by the Director of Central Intelligence;
(g) Participate in the development of procedures approved by the Attorney General governing production and dissemination of intelligence resulting from criminal narcotics intelligence activities abroad if their departments, agencies, or organizations have intelligence responsibilities for foreign or domestic narcotics production and trafficking;
(h) Instruct their employees to cooperate fully with the Intelligence Oversight Board; and
(i) Ensure that the Inspectors General and General Counsels for their organizations have access to any information necessary to perform their duties assigned by this Order.

1.8The Central Intelligence Agency. All duties and responsibilities of the CIA shall be related to the intelligence functions set out below. As authorized by this Order; the National Security Act of 1947, as amended; the CIA Act of 1949, as amended; appropriate directives or other applicable law, the CIA shall:
(a) Collect, produce and disseminate foreign intelligence and counterintelligence, including information not otherwise obtainable. The collection of foreign intelligence or counterintelligence within the United States shall be coordinated with the FBI as required by procedures agreed upon by the Director of Central Intelligence and the Attorney General;
(b) Collect, produce and disseminate intelligence on foreign aspects of narcotics production and trafficking;
(c) Conduct counterintelligence activities outside the United States and, without assuming or performing any internal security functions, conduct counterintelligence activities within the United States in coordination with the FBI as required by procedures agreed upon by the Director of Central Intelligence and the Attorney General;
(d) Coordinate counterintelligence activities and the collection of information not otherwise obtainable when conducted outside the United States by other departments and agencies;
(e) Conduct special activities approved by the President. No agency except the CIA (or the Armed Forces of the United States in time of war declared by Congress or during any period covered by a report from the President to the Congress under the War Powers Resolution (87 Stat. 855)1) may conduct any special activity unless the President determines that another agency is more likely to achieve a particular objective;
(f) Conduct services of common concern for the Intelligence Community as directed by the NSC;
(g) Carry out or contract for research, development and procurement of technical systems and devices relating to authorized functions;
(h) Protect the security of its installations, activities, information, property, and employees by appropriate means, including such investigations of applicants, employees, contractors, and other persons with similar associations with the CIA as are necessary; and
(i) Conduct such administrative and technical support activities within and outside the United States as are necessary to perform the functions described in sections (a) through (h) above, including procurement and essential cover and proprietary arrangements.

1.9The Department of State. The Secretary of State shall:
(a) Overtly collect information relevant to United States foreign policy concerns;
(b) Produce and disseminate foreign intelligence relating to United States foreign policy as required for the execution of the Secretary’s responsibilities;
(c) Disseminate, as appropriate, reports received from United States diplomatic and consular posts;
(d) Transmit reporting requirements of the Intelligence Community to the Chiefs of United States Missions abroad; and
(e) Support Chiefs of Missions in discharging their statutory responsibilities for direction and coordination of mission activities.

1.10The Department of the Treasury. The Secretary of the Treasury shall:
(a) Overtly collect foreign financial and monetary information;
(b) Participate with the Department of State in the overt collection of general foreign economic information;
(c) Produce and disseminate foreign intelligence relating to United States economic policy as required for the execution of the Secretary’s responsibilities; and
(d) Conduct, through the United States Secret Service, activities to determine the existence and capability of surveillance equipment being used against the President of the United States, the Executive Office of the President, and, as authorized by the Secretary of the Treasury or the President, other Secret Service protectees and United States officials. No information shall be acquired intentionally through such activities except to protect against such surveillance, and those activities shall be conducted pursuant to procedures agreed upon by the Secretary of the Treasury and the Attorney General.

1.11The Department of Defense. The Secretary of Defense shall:
(a) Collect national foreign intelligence and be responsive to collection tasking by the Director of Central Intelligence;
(b) Collect, produce and disseminate military and military-related foreign intelligence and counterintelligence as required for execution of the Secretary’s responsibilities;
(c) Conduct programs and missions necessary to fulfill national, departmental and tactical foreign intelligence requirements;
(d) Conduct counterintelligence activities in support of Department of Defense components outside the United States in coordination with the CIA, and within the United States in coordination with the FBI pursuant to procedures agreed upon by the Secretary of Defense and the Attorney General;
(e) Conduct, as the executive agent of the United States Government, signals intelligence and communications security activities, except as otherwise directed by the NSC;
(f) Provide for the timely transmission of critical intelligence, as defined by the Director of Central Intelligence, within the United States Government;
(g) Carry out or contract for research, development and procurement of technical systems and devices relating to authorized intelligence functions;
(h) Protect the security of Department of Defense installations, activities, property, information, and employees by appropriate means, including such investigations of applicants, employees, contractors, and other persons with similar associations with the Department of Defense as are necessary;
(i) Establish and maintain military intelligence relationships and military intelligence exchange programs with selected cooperative foreign defense establishments and international organizations, and ensure that such relationships and programs are in accordance with policies formulated by the Director of Central Intelligence;
(j) Direct, operate, control and provide fiscal management for the National Security Agency and for defense and military intelligence and national reconnaissance entities; and
(k) Conduct such administrative and technical support activities within and outside the United States as are necessary to perform the functions described in sections (a) through (j) above.

1.12Intelligence Components Utilized by the Secretary of Defense. In carrying out the responsibilities assigned in section 1.11, the Secretary of Defense is authorized to utilize the following:
(a) Defense Intelligence Agency, whose responsibilities shall include;
(1) Collection, production, or, through tasking and coordination, provision of military and military-related intelligence for the Secretary of Defense, the Joint Chiefs of Staff, other Defense components, and, as appropriate, non-Defense agencies;
(2) Collection and provision of military intelligence for national foreign intelligence and counterintelligence products;
(3) Coordination of all Department of Defense intelligence collection requirements;
(4) Management of the Defense Attache system; and
(5) Provision of foreign intelligence and counterintelligence staff support as directed by the Joint Chiefs of Staff.
(b) National Security Agency, whose responsibilities shall include:
(1) Establishment and operation of an effective unified organization for signals intelligence activities, except for the delegation of operational control over certain operations that are conducted through other elements of the Intelligence Community. No other department or agency may engage in signals intelligence activities except pursuant to a delegation by the Secretary of Defense;
(2) Control of signals intelligence collection and processing activities, including assignment of resources to an appropriate agent for such periods and tasks as required for the direct support of military commanders;
(3) Collection of signals intelligence information for national foreign intelligence purposes in accordance with guidance from the Director of Central Intelligence;
(4) Processing of signals intelligence data for national foreign intelligence purposes in accordance with guidance from the Director of Central Intelligence;
(5) Dissemination of signals intelligence information for national foreign intelligence purposes to authorized elements of the Government, including the military services, in accordance with guidance from the Director of Central Intelligence;
(6) Collection, processing and dissemination of signals intelligence information for counterintelligence purposes;
(7) Provision of signals intelligence support for the conduct of military operations in accordance with tasking, priorities, and standards of timeliness assigned by the Secretary of Defense. If provision of such support requires use of national collection systems, these systems will be tasked within existing guidance from the Director of Central Intelligence;
(8) Executing the responsibilities of the Secretary of Defense as executive agent for the communications security of the United States Government;
(9) Conduct of research and development to meet the needs of the United States for signals intelligence and communications security;
(10) Protection of the security of its installations, activities, property, information, and employees by appropriate means, including such investigations of applicants, employees, contractors, and other persons with similar associations with the NSA as are necessary;
(11) Prescribing, within its field of authorized operations, security regulations covering operating practices, including the transmission, handling and distribution of signals intelligence and communications security material within and among the elements under control of the Director of the NSA, and exercising the necessary supervisory control to ensure compliance with the regulations;
(12) Conduct of foreign cryptologic liaison relationships, with liaison for intelligence purposes conducted in accordance with policies formulated by the Director of Central Intelligence; and
(13) Conduct of such administrative and technical support activities within and outside the United States as are necessary to perform the functions described in sections (1) through (12) above, including procurement.
(c) Offices for the collection of specialized intelligence through reconnaissance programs, whose responsibilities shall include:
(1) Carrying out consolidated reconnaissance programs for specialized intelligence;
(2) Responding to tasking in accordance with procedures established by the Director of Central Intelligence; and
(3) Delegating authority to the various departments and agencies for research, development, procurement, and operation of designated means of collection.
 (d) The foreign intelligence and counterintelligence elements of the Army, Navy, Air Force, and Marine Corps, whose responsibilities shall include:
(1) Collection, production and dissemination of military and military-related foreign intelligence and counterintelligence, and information on the foreign aspects of narcotics production and trafficking. When collection is conducted in response to national foreign intelligence requirements, it will be conducted in accordance with guidance from the Director of Central Intelligence. Collection of national foreign intelligence, not otherwise obtainable, outside the United States shall be coordinated with the CIA, and such collection within the United States shall be coordinated with the FBI;
(2) Conduct of counterintelligence activities outside the United States in coordination with the CIA, and within the United States in coordination with the FBI; and
(3) Monitoring of the development, procurement and management of tactical intelligence systems and equipment and conducting related research, development, and test and evaluation activities.
(e) Other offices within the Department of Defense appropriate for conduct of the intelligence missions and responsibilities assigned to the Secretary of Defense. If such other offices are used for intelligence purposes, the provisions of Part 2 of this Order shall apply to those offices when used for those purposes.

1.13The Department of Energy. The Secretary of Energy shall:
(a) Participate with the Department of State in overtly collecting information with respect to foreign energy matters;
(b) Produce and disseminate foreign intelligence necessary for the Secretary’s responsibilities;
(c) Participate in formulating intelligence collection and analysis requirements where the special expert capability of the Department can contribute; and
(d) Provide expert technical, analytical and research capability to other agencies within the Intelligence Community.

1.14The Federal Bureau of Investigation. Under the supervision of the Attorney General and pursuant to such regulations as the Attorney General may establish, the Director of the FBI shall:
(a) Within the United States conduct counterintelligence and coordinate counterintelligence activities of other agencies within the Intelligence Community. When a counterintelligence activity of the FBI involves military or civilian personnel of the Department of Defense, the FBI shall coordinate with the Department of Defense;
(b) Conduct counterintelligence activities outside the United States in coordination with the CIA as required by procedures agreed upon by the Director of Central Intelligence and the Attorney General;
(c) Conduct within the United States, when requested by officials of the Intelligence Community designated by the President, activities undertaken to collect foreign intelligence or support foreign intelligence collection requirements of other agencies within the Intelligence Community, or, when requested by the Director of the National Security Agency, to support the communications security activities of the United States Government;
(d) Produce and disseminate foreign intelligence and counterintelligence; and
(e) Carry out or contract for research, development and procurement of technical systems and devices relating to the functions authorized above.

Part 2

Conduct of Intelligence Activities

2.1Need. Accurate and timely information about the capabilities, intentions and activities of foreign powers, organizations, or persons and their agents is essential to informed decisionmaking in the areas of national defense and foreign relations. Collection of such information is a priority objective and will be pursued in a vigorous, innovative and responsible manner that is consistent with the Constitution and applicable law and respectful of the principles upon which the United States was founded.

2.2Purpose. This Order is intended to enhance human and technical collection techniques, especially those undertaken abroad, and the acquisition of significant foreign intelligence, as well as the detection and countering of international terrorist activities and espionage conducted by foreign powers. Set forth below are certain general principles that, in addition to and consistent with applicable laws, are intended to achieve the proper balance between the acquisition of essential information and protection of individual interests. Nothing in this Order shall be construed to apply to or interfere with any authorized civil or criminal law enforcement responsibility of any department or agency.

2.3Collection of Information. Agencies within the Intelligence Community are authorized to collect, retain or disseminate information concerning United States persons only in accordance with procedures established by the head of the agency concerned and approved by the Attorney General, consistent with the authorities provided by Part 1 of this Order. Those procedures shall permit collection, retention and dissemination of the following types of information:
(a) Information that is publicly available or collected with the consent of the person concerned;
(b) Information constituting foreign intelligence or counterintelligence, including such information concerning corporations or other commercial organizations. Collection within the United States of foreign intelligence not otherwise obtainable shall be undertaken by the FBI or, when significant foreign intelligence is sought, by other authorized agencies of the Intelligence Community, provided that no foreign intelligence collection by such agencies may be undertaken for the purpose of acquiring information concerning the domestic activities of United States persons;
(c) Information obtained in the course of a lawful foreign intelligence, counterintelligence, international narcotics or international terrorism investigation;
(d) Information needed to protect the safety of any persons or organizations, including those who are targets, victims or hostages of international terrorist organizations;
(e) Information needed to protect foreign intelligence or counterintelligence sources or methods from unauthorized disclosure. Collection within the United States shall be undertaken by the FBI except that other agencies of the Intelligence Community may also collect such information concerning present or former employees, present or former intelligence agency contractors or their present or former employees, or applicants for any such employment or contracting;
(f) Information concerning persons who are reasonably believed to be potential sources or contacts for the purpose of determining their suitability or credibility;
(g) Information arising out of a lawful personnel, physical or communications security investigation;
(h) Information acquired by overhead reconnaissance not directed at specific United States persons;
(i) Incidentally obtained information that may indicate involvement in activities that may violate federal, state, local or foreign laws; and
(j) Information necessary for administrative purposes.
In addition, agencies within the Intelligence Community may disseminate information, other than information derived from signals intelligence, to each appropriate agency within the Intelligence Community for purposes of allowing the recipient agency to determine whether the information is relevant to its responsibilities and can be retained by it.

2.4Collection Techniques. Agencies within the Intelligence Community shall use the least intrusive collection techniques feasible within the United States or directed against United States persons abroad. Agencies are not authorized to use such techniques as electronic surveillance, unconsented physical search, mail surveillance, physical surveillance, or monitoring devices unless they are in accordance with procedures established by the head of the agency concerned and approved by the Attorney General. Such procedures shall protect constitutional and other legal rights and limit use of such information to lawful governmental purposes. These procedures shall not authorize:
(a) The CIA to engage in electronic surveillance within the United States except for the purpose of training, testing, or conducting countermeasures to hostile electronic surveillance;
(b) Unconsented physical searches in the United States by agencies other than the FBI, except for:
(1) Searches by counterintelligence elements of the military services directed against military personnel within the United States or abroad for intelligence purposes, when authorized by a military commander empowered to approve physical searches for law enforcement purposes, based upon a finding of probable cause to believe that such persons are acting as agents of foreign powers; and
(2) Searches by CIA of personal property of non-United States persons lawfully in its possession.
(c) Physical surveillance of a United States person in the United States by agencies other than the FBI, except for:
(1) Physical surveillance of present or former employees, present or former intelligence agency contractors or their present of former employees, or applicants for any such employment or contracting; and
(2) Physical surveillance of a military person employed by a nonintelligence element of a military service.
(d) Physical surveillance of a United States person abroad to collect foreign intelligence, except to obtain significant information that cannot reasonably be acquired by other means.

2.5Attorney General Approval. The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes, provided that such techniques shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power. Electronic surveillance, as defined in the Foreign Intelligence Surveillance Act of 1978, shall be conducted in accordance with that Act, as well as this Order.

2.6Assistance to Law Enforcement Authorities. Agencies within the Intelligence Community are authorized to:
(a) Cooperate with appropriate law enforcement agencies for the purpose of protecting the employees, information, property and facilities of any agency within the Intelligence Community;
(b) Unless otherwise precluded by law or this Order, participate in law enforcement activities to investigate or prevent clandestine intelligence activities by foreign powers, or international terrorist or narcotics activities;
(c) Provide specialized equipment, technical knowledge, or assistance of expert personnel for use by any department or agency, or, when lives are endangered, to support local law enforcement agencies. Provision of assistance by expert personnel shall be approved in each case by the General Counsel of the providing agency; and
(d) Render any other assistance and cooperation to law enforcement authorities not precluded by applicable law.

2.7Contracting. Agencies within the Intelligence Community are authorized to enter into contracts or arrangements for the provision of goods or services with private companies or institutions in the United States and need not reveal the sponsorship of such contracts or arrangements for authorized intelligence purposes. Contracts or arrangements with academic institutions may be undertaken only with the consent of appropriate officials of the institution.

2.8Consistency With Other Laws. Nothing in this Order shall be construed to authorize any activity in violation of the Constitution or statutes of the United States.

2.9Undisclosed Participation in Organizations Within the United States. No one acting on behalf of agencies within the Intelligence Community may join or otherwise participate in any organization in the United States on behalf of any agency within the Intelligence Community without disclosing his intelligence affiliation to appropriate officials of the organization, except in accordance with procedures established by the head of the agency concerned and approved by the Attorney General. Such participation shall be authorized only if it is essential to achieving lawful purposes as determined by the agency head or designee. No such participation may be undertaken for the purpose of influencing the activity of the organization or its members except in cases where:
(a) The participation is undertaken on behalf of the FBI in the course of a lawful investigation; or
(b) The organization concerned is composed primarily of individuals who are not United States persons and is reasonably believed to be acting on behalf of a foreign power.

2.10Human Experimentation. No agency within the Intelligence Community shall sponsor, contract for or conduct research on human subjects except in accordance with guidelines issued by the Department of Health and Human Services. The subject’s informed consent shall be documented as required by those guidelines.

2.11Prohibition on Assassination. No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.

2.12Indirect Participation. No agency of the Intelligence Community shall participate in or request any person to undertake activities forbidden by this Order.

Part 3

General Provisions

3.1Congressional Oversight. The duties and responsibilities of the Director of Central Intelligence and the heads of other departments, agencies, and entities engaged in intelligence activities to cooperate with the Congress in the conduct of its responsibilities for oversight of intelligence activities shall be as provided in title 50, United States Code, section 413. The requirements of section 662 of the Foreign Assistance Act of 1961, as amended (22 U.S.C. 2422), and section 501 of the National Security Act of 1947, as amended (50 U.S.C. 413), shall apply to all special activities as defined in this Order.

3.2Implementation. The NSC, the Secretary of Defense, the Attorney General, and the Director of Central Intelligence shall issue such appropriate directives and procedures as are necessary to implement this Order. Heads of agencies within the Intelligence Community shall issue appropriate supplementary directives and procedures consistent with this Order. The Attorney General shall provide a statement of reasons for not approving any procedures established by the head of an agency in the Intelligence Community other than the FBI. The National Security Council may establish procedures in instances where the agency head and the Attorney General are unable to reach agreement on other than constitutional or other legal grounds.

3.3Procedures. Until the procedures required by this Order have been established, the activities herein authorized which require procedures shall be conducted in accordance with existing procedures or requirements established under Executive Order No. 12036. Procedures required by this Order shall be established as expeditiously as possible. All procedures promulgated pursuant to this Order shall be made available to the congressional intelligence committees.

3.4Definitions. For the purposes of this Order, the following terms shall have these meanings:
(a) Counterintelligence means information gathered and activities conducted to protect against espionage, other intelligence activities, sabotage, or assassinations conducted for or on behalf of foreign powers, organizations or persons, or international terrorist activities, but not including personnel, physical, document or communications security programs.
(b) Electronic surveillance means acquisition of a nonpublic communication by electronic means without the consent of a person who is a party to an electronic communication or, in the case of a nonelectronic communication, without the consent of a person who is visibly present at the place of communication, but not including the use of radio direction-finding equipment solely to determine the location of a transmitter.
(c) Employee means a person employed by, assigned to or acting for an agency within the Intelligence Community.
(d) Foreign intelligence means information relating to the capabilities, intentions and activities of foreign powers, organizations or persons, but not including counterintelligence except for information on international terrorist activities.
(e) Intelligence activities means all activities that agencies within the Intelligence Community are authorized to conduct pursuant to this Order.
(f) Intelligence Community and agencies within the Intelligence Community refer to the following agencies or organizations:
(1) The Central Intelligence Agency (CIA);
(2) The National Security Agency (NSA);
(3) The Defense Intelligence Agency (DIA);
(4) The offices within the Department of Defense for the collection of specialized national foreign intelligence through reconnaissance programs;
(5) The Bureau of Intelligence and Research of the Department of State;
(6) The intelligence elements of the Army, Navy, Air Force, and Marine Corps, the Federal Bureau of Investigation (FBI), the Department of the Treasury, and the Department of Energy; and
(7) The staff elements of the Director of Central Intelligence.
(g) The National Foreign Intelligence Program includes the programs listed below, but its composition shall be subject to review by the National Security Council and modification by the President:
(1) The programs of the CIA;
(2) The Consolidated Cryptologic Program, the General Defense Intelligence Program, and the programs of the offices within the Department of Defense for the collection of specialized national foreign intelligence through reconnaissance, except such elements as the Director of Central Intelligence and the Secretary of Defense agree should be excluded;
(3) Other programs of agencies within the Intelligence Community designated jointly by the Director of Central Intelligence and the head of the department or by the President as national foreign intelligence or counterintelligence activities;
(4) Activities of the staff elements of the Director of Central Intelligence;
(5) Activities to acquire the intelligence required for the planning and conduct of tactical operations by the United States military forces are not included in the National Foreign Intelligence Program.
(h) Special activities means activities conducted in support of national foreign policy objectives abroad which are planned and executed so that the role of the United States Government is not apparent or acknowledged publicly, and functions in support of such activities, but which are not intended to influence United States political processes, public opinion, policies, or media and do not include diplomatic activities or the collection and production of intelligence or related support functions.
(i) United States person means a United States citizen, an alien known by the intelligence agency concerned to be a permanent resident alien, an unincorporated association substantially composed of United States citizens or permanent resident aliens, or a corporation incorporated in the United States, except for a corporation directed and controlled by a foreign government or governments.

3.5Purpose and Effect. This Order is intended to control and provide direction and guidance to the Intelligence Community. Nothing contained herein or in any procedures promulgated hereunder is intended to confer any substantive or procedural right or privilege on any person or organization.

3.6Revocation. Executive Order No. 12036 of January 24, 1978, as amended, entitled “United States Intelligence Activities,” is revoked.

Source: The U.S. National Archives and Records Administration
Categories: Govenance & Privacy

Church Committee Report

March 12th, 2014 No comments

INTELLIGENCE ACTIVITIES AND THE RIGHTS OF AMERICANS

 FINAL REPORT OF THE SELECT COMMITTEE TO STUDY GOVERNMENTAL OPERATIONS WITH RESPECT TO INTELLIGENCE ACTIVITIES

 (CHURCH COMMITTEE REPORT)

 UNITED STATES SENATE TOGETHER WITH ADDITIONAL, SUPPLEMENTAL, AND SEPARATE VIEWS

 April 26 (legislative day, April 14), 1976

 I. INTRODUCTION AND SUMMARY

 The resolution creating this Committee placed greatest emphasis on whether intelligence activities threaten the “rights of American citizens.” 1

 The critical question before the Committee was to determine how the fundamental liberties of the people can be maintained in the course of the Government’s effort to protect their security. The delicate balance between these basic goals of our system of government is often difficult to strike, but it can, and must, be achieved. We reject the view that the traditional American principles of justice and fair play have no place in our struggle against the enemies of freedom. Moreover, our investigation has established that the targets of intelligence activity have ranged far beyond persons who could properly be characterized as enemies of freedom and have extended to a wide array of citizens engaging in lawful activity.

 Americans have rightfully been concerned since before World War II about the dangers of hostile foreign agents likely to commit acts of espionage. Similarly, the violent acts of political terrorists can seriously endanger the rights of Americans. Carefully focused intelligence investigations can help prevent such acts. But too often intelligence has lost this focus and domestic intelligence activities have invaded individual privacy and violated the rights of lawful assembly and political expression. Unless new and tighter controls are established by legislation, domestic intelligence activities threaten to undermine our democratic society and fundamentally alter its nature.

 We have examined three types of “intelligence” activities affecting the rights of American citizens. The first is intelligence collection — such as infiltrating groups with informants, wiretapping, or opening letters. The second is dissemination of material which has been collected. The third is covert action designed to disrupt and discredit the activities of groups and individuals deemed a threat to the social order. These three types of “intelligence” activity are closely related in the practical world. Information which is disseminated by the intelligence community 2 or used in disruptive programs has usually been obtained through surveillance. Nevertheless, a division between collection, dissemination and covert action is analytically useful both in understanding why excesses have occurred in the past and in devising remedies to prevent those excesses from recurring.

 A. Intelligence Activity: A New Form of Governmental Power to Impair Citizens’ Rights

 A tension between order and liberty is inevitable in any society. A Government must protect its citizens from those bent on engaging in violence and criminal behavior, or in espionage and other hostile foreign intelligence activity. Many of the intelligence programs reviewed in this report were established for those purposes. Intelligence work has, at times, successfully prevented dangerous and abhorrent acts, such as bombings and foreign spying, and aided in the prosecution of those responsible for such acts.

 But, intelligence activity in the past decades has, all too often, exceeded the restraints on the exercise of governmental power which are imposed by our country’s Constitution, laws, and traditions.

 Excesses in the name of protecting security are not a recent development in our nation’s history. In 1798, for example, shortly after the Bill of Rights was added to the Constitution, the Allen and Sedition Acts were passed. These Acts, passed in response to fear of proFrench “subversion”, made it a crime to criticize the Government. 3 During the Civil War, President Abraham Lincoln suspended the writ of habeas corpus. Hundreds of American citizens were prosecuted for anti-war statements during World War I, and thousands of “radical” aliens were seized for deportation during the 1920 Palmer Raids. During the Second World War, over the opposition of J. Edgar Hoover and military intelligence, 4 120,000 Japanese-Americans were apprehended and incarcerated in detention camps.

Those actions, however, were fundamentally different from the intelligence activities examined by this Committee. They were generally executed overtly under the authority of a statute or a public executive order. The victims knew what was being done to them and could challenge the Government in the courts and other forums. Intelligence activity, on the other hand, is generally covert. It is concealed from its victims 5 and is seldom described in statutes or explicit executive orders. The victim may never suspect that his misfortunes are the intended result of activities undertaken by his government, and accordingly may have no opportunity to challenge the actions taken against him.

 It is, of course, proper in many circumstances — such as developing a criminal prosecution — for the Government to gather information about a citizen and use it to achieve legitimate ends, some of which might be detrimental to the citizen. But in criminal prosecutions, the courts have struck a balance between protecting the rights of the accused citizen and protecting the society which suffers the consequences of crime. Essential to the balancing process are the rules of criminal law which circumscribe the techniques for gathering evidence 6 the kinds of evidence that may be collected, and the uses to which that evidence may be put. In addition, the criminal defendant is given an opportunity to discover and then challenge the legality of how the Government collected information about him and the use which the Government intends to make of that information.

This Committee has examined a realm of governmental information collection which has not been governed by restraints comparable to those in criminal proceedings. We have examined the collection of intelligence about the political advocacy and actions and the private lives of American citizens. That information has been used covertly to discredit the ideas advocated and to “neutralize” the actions of their proponents. As Attorney General Harlan Fiske Stone warned in 1924, when he sought to keep federal agencies from investigating “political or other opinions” as opposed to “conduct . . . forbidden by the laws”:

 When a police system passes beyond these limits, it is dangerous to the proper administration of justice and to human liberty, which it should be our first concern to cherish.

 . . . There is always a possibility that a secret police may become a menace to free government and free institutions because it carries with it the possibility of abuses of power which are not always quickly apprehended or understood.

Our investigation has confirmed that warning. We have seen segments of our Government, in their attitudes and action, adopt tactics unworthy of a democracy, and occasionally reminiscent of the tactics of totalitarian regimes. We have seen a consistent pattern in which programs initiated with limited goals, such as preventing criminal violence or identifying foreign spies, were expanded to what witnesses characterized as “vacuum cleaners”,” sweeping in information about lawful activities of American citizens.

The tendency of intelligence activities to expand beyond their initial scope is a theme which runs through every aspect of our investigative findings. Intelligence collection programs naturally generate ever-increasing demands for new data. And once intelligence has been collected, there are strong pressures to use it against the target.

The pattern of intelligence agencies expanding the scope of their activities was well described by one witness, who in 1970 had coordinated an effort by most of the intelligence community to obtain authority to undertake more illegal domestic activity:

The risk was that you would get people who would be susceptible to political considerations as opposed to national security considerations, or would construe political considerations to be national security considerations, to move from the, kid with a bomb to the kid with a picket sign, and from the kid with the picket sign to the kid with the bumper sticker of the opposing candidate. And you just keep going down the line.

In 1940, Attorney General Robert Jackson saw the same risk. He recognized that using broad labels like “national security” or “subversion” to invoke the vast power of the government is dangerous because there are “no definite standards to determine what constitutes a ‘subversive activity, such as we have for murder or larceny.” Jackson added:

Activities which seem benevolent or helpful to wage earners, persons on relief, or those who are disadvantaged in the struggle for existence may be regarded as ‘subversive’ by those whose property interests might be burdened thereby. Those who are in office are apt to regard as ‘subversive’ the activities of any of those who would bring about a change of administration. Some of our soundest constitutional doctrines were once punished as subversive. We must not forget that it was not so long ago that both the term ‘Republican’ and the term ‘Democrat’ were epithets with sinister meaning to denote persons of radical tendencies that were ‘subversive’ of the order of things then dominant.

This wise warning was not heeded in the conduct of intelligence activity, where the “eternal vigilance” which is the “price of liberty” has been forgotten.

 B. The Questions

 We have directed our investigation toward answering the, following questions:

 Which governmental agencies have engaged in domestic spying?

 How many citizens have been targets of Governmental intelligence activity?

 What standards have governed the opening of intelligence investigations and when have intelligence investigations been terminated?

 Where have the targets fit on the spectrum between those who commit violent criminal acts and those who seek only to dissent peacefully from Government policy?

 To what extent has the information collected included intimate details of the targets’ personal lives or their political views, and has such information been disseminated and used to injure individuals?

 What actions beyond surveillance have intelligence agencies taken, such as attempting to disrupt, discredit, or destroy persons or groups who have been the targets of surveillance?

 Have intelligence agencies been used to serve the political aims of Presidents, other high officials, or the agencies themselves?

 How have the agencies responded either to proper orders or to excessive pressures from their superiors? To what extent have intelligence agencies disclosed, or concealed them from, outside bodies charged with overseeing them?

 Have intelligence agencies acted outside the law? What has been the attitude of the intelligence community toward the rule of law?

 To what extent has the Executive branch and the Congress controlled intelligence agencies and held them accountable?

 Generally, how well has the Federal system of checks and balances between the branches worked to control intelligence activity?

 C. Summary of the Main Problems

 The answer to each of these questions is disturbing. Too many people have been spied upon by too many Government agencies and to much information has been collected. The Government has often undertaken the secret surveillance of citizens on the basis of their political beliefs, even when those beliefs posed no threat of violence or illegal acts on behalf of a hostile foreign power. The Government, operating primarily through secret informants, but also using other intrusive techniques such as wiretaps, microphone “bugs” surreptitious mail opening, and break-ins, has swept in vast amounts of information about the personal lives, views, and associations of American citizens. Investigations of groups deemed potentially dangerous — and even of groups suspected of associating with potentially dangerous organizations — have continued for decades, despite the fact that those groups did not engage in unlawful activity. Groups and individuals have been harassed and disrupted because of their political views and their lifestyles. Investigations have been based upon vague standards whose breadth made excessive collection inevitable. Unsavory and vicious tactics have been employed — including anonymous attempts to break up marriages, disrupt meetings, ostracize persons from their professions, and provoke target groups into rivalries that might result in deaths. Intelligence agencies have served the political and personal objectives of presidents and other high officials. While the agencies often committed excesses in response to pressure from high officials in the Executive branch and Congress, they also occasionally initiated improper activities and then concealed them from officials whom they had a duty to inform.

Governmental officials — including those whose principal duty is to enforce the law –have violated or ignored the law over long periods of time and have advocated and defended their right to break the law.

The Constitutional system of checks and balances has not adequately controlled intelligence activities. Until recently the Executive branch has neither delineated the scope of permissible activities nor established procedures for supervising intelligence agencies. Congress has failed to exercise sufficient oversight, seldom questioning the use to which its apropriations were being put. Most domestic intelligence issues have not reached the courts, and in those cases when they have reached the courts, the judiciary has been reluctant to grapple with them.

Each of these points is briefly illustrated below, and covered in substantially greater detail in the following sections of the report.

1. The Number of People Affected by Domestic Intelligence Activity

United States intelligence agencies have investigated a vast number of American citizens and domestic organizations. FBI headquarters alone has developed over 500,000 domestic intelligence files, 11 and these have been augmented by additional files at FBI Field Offices. The FBI opened 65,000 of these domestic intelligence files in 1972 alone. 12 In fact, substantially more individuals and groups are subject to intelligence scrutiny than the number of files would appear to indicate, since typically, each domestic intelligence file contains information on more than one individual or group, and this information is readily retrievable through the FBI General Name Index.

The number of Americans and domestic groups caught in the domestic intelligence net is further illustrated by the following statistics:

— Nearly a quarter of a million first class letters were opened and photographed in the United States by the CIA between 1953-1973, producing a CIA computerized index of nearly one and one-half million names. 13

— At least 130,000 first class letters were opened and photographed by the FBI between 1940-1966 in eight U.S. cities. 14

— Some 300,000 individuals were indexed in a CIA computer system and separate files were created on approximately 7,200 Americans and over 100 domestic groups during the course of CIA’s Operation CHAOS (1967-1973). 15

— Millions of private telegrams sent from, to, or through the United States were obtained by the National Security Agency from 1947 to 1975 under a secret arrangement with three United States telegraph companies. 16

— An estimated 100,000 Americans were the subjects of United States Army intelligence files created between the mid 1960’s and 1971. 17

— Intelligence files on more than 11,000 individuals and groups were created by the Internal Revenue Service between 1969 and 1973 and tax investigations were started on the basis of political rather than tax criteria. 18

— At least 26,000 individuals were at one point catalogued on an FBI list of persons to be rounded up in the event of a “national emergency”. 19

2. Too Much Information Is Collected For Too Long

Intelligence agencies have collected vast amounts of information about the intimate details of citizens’ lives and about their participation in legal and peaceful political activities. The targets of intelligence activity have included political adherents of the right and the left, ranging from activitist to casual supporters. Investigations have been directed against proponents of racial causes and women’s rights, outspoken apostles of nonviolence and racial harmony; establishment politicians; religious groups; and advocates of new life styles. The widespread targeting of citizens and domestic groups, and the excessive scope of the collection of information, is illustrated by the following examples:

(a) The “Women’s Liberation Movement” was infiltrated by informants who collected material about the movement’s policies, leaders, and individual members. One report included the name of every woman who attended meetings, 20 and another stated that each woman at a meeting bad described “how she felt oppressed, sexually or otherwise”. 21 Another report concluded that the movement’s purpose was to “free women from the humdrum existence of being only a wife and mother”, but still recommended that the intelligence investigation should be continued. 22

(b) A prominent civil rights leader and advisor to Dr. Martin Luther ing, Jr., was investigated on the suspicion that he might be a Communist ” sympathizer”. The FBI field office concluded he was not. 23 Bureau headquarters directed that the investigation continue using a theory of “guilty until proven innocent:”

The Bureau does not agree with the expressed belief of the field office that – – – – – – – – – – – – – – – – – – 24 is not sympathetic to the Party cause. While there may not be any evidence that – – – – – – – – – – – – – – – – – – is a Communist neither is there any substantial evidence that he is anti-Communist. 25

(c) FBI sources reported on the formation of the Conservative American Christian Action Council in 1971. 26 In the 1950’s, the Bureau collected information about the John Birch Society and passed it to the White House because of the Society’s “scurillous attack” on President Eisenhower and other high Government officials. 27

(d) Some investigations of the lawful activities of peaceful groups have continued for decades. For example, the NAACP was investigated to determine whether it “had connections with” the Communist Party. The investigation lasted for over twenty-five years, although nothing was found to rebut a report during the first year of the investigation that the NAACP had a “strong tendency” to “steer clear of Communist activities.” 211 Similarly, the FBI has admitted that the Socialist Workers Party has committed no criminal acts. Yet the Bureau has investigated the Socialist Workers Party for more than three decades on the basis of its revolutionary rhetoric-which the FBI concedes falls short of incitement to violence-and its claimed international links. The Bureau is currently using its informants to collect information about SWP members’ political views, including those on “U.S. involvement in Angola,” “food prices,” “racial matters,” the “Vietnam War,” and about any of their efforts to support non-SWP candidates for political office. 29

(e) National political leaders fell within the broad reach of intelligence investigations. For example, Army Intelligrnce nee maintained files on Senator Adlai Stevenson and Congressman Abner Mikva because of their participation in peaceful political meetings under surveillance by Army agents. 30 A letter to Richard Nixon, while he was a candidate for President in 1968, was intercepted under CIA’s mail opening program. In the 1960’s President Johnson asked the FBI to compare various Senators’ statements on Vietnam with the Communist Party line 32 and to conduct name checks on leading antiwar Senators. 33

(f) As part of their effort to collect information which “related even remotely” to people or groups “active” in communities which had “the potential” for civil disorder, Army intelligence agencies took such steps as: sending agents to a Halloween party for elementary school children in Washington, D.C., because they suspected a local “dissident” might be present; monitoring protests of welfare mothers’ organizations in Milwaukee; infiltrating a coalition of church youth groups in Colorado; and sending agents to a priests’ conference in Washington, D.C., held to discuss birth control measures. 34

(g) In the, late 1960’s and early 1970s, student groups were subjected to intense scrutiny. In 1970 the FBI ordered investigations of every member of the Students for a Democratic Society and of “every Black Student Union and similar group regardless of their past or present involvement in disorders.” 35 Files were opened on thousands of young men and women so that, as the former head of FBI intelligence explained , the information could be used if they ever applied for a government job. 36

In the 1960’s Bureau agents were instructed to increase their efforts to discredit “New Left” student demonstrators by tactics including publishing photographs (“naturally the most obnoxious picture should be used”), 37 using “misinformation” to falsely notify members events had been cancelled ’18 and writing “tell-tale” letters to students’ parents. 39

(h) The FBI Intelligence Division commonly investigated any indication that “subversive” groups already under investigation were seeking to influence or control other groups. 40 One example of the extreme breadth of this “infiltration” theory was an FBI instruction in the mid-1960’s to all Field Offices to investigate every “free university” because some of them had come under “subversive influence. ” 41

(i) Each administration from Franklin D. Roosevelt’s to Richard Nixon’s permitted, and sometimes encouraged, government agencies to handle essentially political intelligence. For example:

— President Roosevelt asked the FBI to put in its files the names of citizens sending telegrams to the White House opposing his “national defense” policy and supporting Col. Charles Lindbergh. 42

— President Truman received inside information on a former Roosevelt aide’s efforts to influence his appointments, 43 labor union negotiating plans, 44 and the publishing plans of journalists. 45

— President Eisenhower received reports on purely political and social contacts with foreign officials by Bernard Baruch, 46 Mrs. Eleanor Roosevelt, 47 and Supreme Court Justice William 0. Douglas. 47a

— The Kennedy Administration had the FBI wiretap a Congressional staff member , 48 three executive officials, 49 a lobbyist, 50 and a, Washington law firm. 51 Attorney General Robert F. Kennedy received the fruits of a FBI “tap” on Martin Luther King, Jr. 52 and a “bug” on a Congressman both of which yielded information of a political nature. 53

— President Johnson asked the FBI to conduct “name checks” of his critics and of members of the staff of his 1964 opponent, Senator Barry Goldwater. 54 He also requested purely political intelligence on his critics in the Senate, and received extensive intelligence reports on political activity at the 1964 Democratic Convention from FBI electronic surveillance. 55

— President Nixon authorized a program of wiretaps which produced for the White House purely political or personal information unrelated to national security, including information about a Supreme Court justice. 56

3. Covert Action and the Use of Illegal or Improper Means

(a) Covert Action. — Apart from uncovering excesses in the collection of intelligence, our investigation has disclosed covert actions directed against Americans, and the use of illegal and improper surveillance techniques to gather information. For example:

(i) The FBI’s COINTELPRO — counterintelligence program — was designed to “disrupt” groups and “neutralize” individuals deemed to be threats to domestic security. The FBI resorted to counterintelligence tactics in part because its chief officials believed that the existing law could not control the activities of certain dissident groups, and that court decisions had tied the hands of the intelligence community. Whatever opinion one holds about the policies of the targeted groups, many of the tactics employed by the FBI were indisputably degrading to a free society. COINTELPRO tactics included:

— Anonymously attacking the political beliefs of targets in order to induce their employers to fire them;

— Anonymously mailing letters to the spouses of intelligence targets for the purpose of destroying their marriages; 57

— Obtaining from IRS the tax returns of a target and then attempting to provoke an IRS investigation for the express purpose of deterring a protest leader from attending the Democratic National Convention; 58

— Falsely and anonymously labeling as Government informants members of groups known to be violent, thereby exposing the falsely labelled member to expulsion or physical attack; 59

— Pursuant to instructions to use “misinformation” to disrupt demonstrations, employing such means as broadcasting fake orders on the same citizens band radio frequency used by demonstration marshalls to attempt to control demonstrations, 60 and duplicating and falsely filling out forms soliciting housing for persons coming to a demonstration, thereby causing “long and useless journeys to locate these addresses”; 61

— Sending an anonymous letter to the leader of a Chicago street gang (described as “violence-prone”) stating that the Black Panthers were supposed to have “a hit out for you”. The letter was suggested because it “may intensify . . . animosity” and cause the street gang leader to “take retaliatory action”. 62

(ii) From “late 1963” until his death in 1968, Martin Luther King, Jr., was the target of an intensive campaign by the Federal Bureau of Investigation to “neutralize” him as an effective civil rights leader. In the words of the man in charge of the FBI’s “war” against Dr. King, “No holds were barred.” 63

The FBI gathered information about Dr. King’s plans and activities through an extensive surveillance program, employing nearly every intelligence-gathering technique at the Bureau’s disposal in order to obtain information about the “private activities of Dr. King and his advisors” to use to “completely discredit” them. 64

The program to destroy Dr. King as the leader of the civil rights movement included efforts to discredit him with Executive branch officials, Congressional leaders, foreign heads of state, American ambassadors, churches. universities, and the press. 65

The FBI mailed Dr. King a tape recording made from microphones hidden in his hotel rooms which one agent testified was an attempt to destroy Dr. King’s marriage.66 The tape recording was accompanied by a note which Dr. King and his advisors interpreted as threatening to release the tape recording unless Dr. King committed suicide. 67

The extraordinary nature of the campaign to discredit Dr. King is evident from two documents:

— At the August 1963 March on Washington, Dr. King told the country of his “dream” that:

all of God’s children, black men and white men, Jews and Gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual, “Free at last, free at last, thank God Almighty, I’m free at last.”

The Bureau’s Domestic Intelligence Division concluded that this “demagogic speech” established Dr. King as the “most dangerous and effective Negro leader in the country.” 68 Shortly afterwards, and within days after Dr. King was named “Man of the Year” by Time magazine, the FBI decided to “take him off his pedestal,” reduce him completely in influence,” and select and promote its own candidate to “assume the role of the leadership of the Negro people.” 69

— In early 1968, Bureau headquarters explained to the field that Dr. King must be destroyed because he was seen as a potential “messiah” who could “unify and electrify” the “black nationalist movement”. Indeed, to the FBI he was a potential threat because he might “abandon his supposed ‘obedience’ to white liberal doctrines (non-violence) .” 70 In short, a non-violent man was to be secretly attacked and destroyed as insurance against his abandoning non-violence.

(b) Illegal or Improper Means. — The surveillance which we investigated was not only vastly excessive in breadth and a basis for degrading counterintelligence actions, but was also often conducted by illegal or improper means. For example:

(1) For approximately 20 years the CIA carried out a program of indiscriminately opening citizens’ first class mail. The Bureau also had a mail opening program, but cancelled it in 1966. The Bureau continued, however, to receive the illegal fruits of CIA’s program. In 1970, the heads of both agencies signed a document for President Nixon, which correctly stated that mail opening was illegal, falsely stated that it had been discontinued, and proposed that the illegal opening of mail should be resumed because it would provide useful results. The President approved the program, but withdrew his approval five days later. The illegal opening continned nonetheless. Throughout this period CIA officials knew that mail opening was illegal, but expressed concern about the “flap potential” of exposure, not about the illegality of their activity. 71

(2) From 1947 until May 1975, NSA received from international cable companies millions of cables which had been sent by American citizens in the reasonable expectation that they would be kept private. 7

(3) Since the early 1930’s, intelligence agencies have frequently wiretapped and bugged American citizens without the benefit of judicial warrant. Recent court decisions have curtailed the use of these techniques against domestic targets. But past subjects of these surveillances have included a United States Congressman, a Congressional staff member, journalists and newsmen, and numerous individuals and groups who engaged in no criminal activity and who posed no genuine threat to the national security, such as two White House domestic affairs advisers and an anti Vietnam War protest group. While the prior written approval of the Attorney General has been required for all warrantless wiretaps since 1940, the record is replete with instances where this requirement was ignored and the Attorney General gave only after-the-fact authorization

Until 1965, microphone surveillance by intelligence agencies was wholly unregulated in certain classes of cases. Within weeks after a 1954 Supreme Court decision denouncing the FBI’s installation of a microphone in a defendant’s bedroom, the Attorney General informed the Bureau that he did not believe the decision applied to national security cases and permitted the FBI to continue to install microphones subject only to its own “intelligent restraint”. 73

(4) In several cases, purely political information (such as the reaction of Congress to an Administration’s legislative proposal) and purely personal information (such as coverage of the extra-marital social activities of a high-level Executive official under surveillance) was obtained from electronic surveillance and disseminated to the highest levels of the federal government. 7

(5) Warrantless break-ins have been conducted by intelligence agencies since World War II. During the 1960’s alone, the FBI and CIA conducted hundreds of break-ins, many against American citizens and domestic organizations. In some cases, these break-ins were to install microphones; in other cases, they were to steal such items as membership lists from organizations considered “subversive” by the Bureau. 75

 

(6) The most pervasive surveillance technique has been the informant. In a random sample of domestic intelligence cases, 83% involved informants and 5% involved electronic surveillance. 76 Informants have been used against peaceful, law-abiding groups; they have collected information about personal and political views and activities. 77 To maintain their credentials in violence-prone groups, informants have involved themselves in violent activity. This phenomenon is well illustrated by an informant in the Klan. He was present at the murder of a civil rights worker in Mississippi and subsequently helped to solve the crime and convict the perpetrators. Earlier, however, while performing duties paid for by the Government, he had previously “beaten people severely, had boarded buses and kicked people, had [gone] into restaurants and beaten them [blacks] with blackjacks, chains, pistols.” 78 Although the FBI requires agents to instruct informants that they cannot be involved in violence, it was understood that in the Klan, “he couldn’t be an angel and be a good informant.” 79

 

4. Ignoring the Law

 

Officials of the intelligence agencies occasionally recognized that certain activities were illegal, but expressed concern only for “flap Potential.” Even more disturbing was the frequent testimony that the law, and the Constitution were simply ignored. For example, the author of the so-called Huston plan testified:

 

Question. Was there any person who stated that the activity recommended, which you have previously identified as being illegal opening of the mail and breaking and entry or burglary — was there any single person who stated that such activity should not be done because it was unconstitutional?

 

Answer. No.

 

Question. Was there any single person who said such activity should not be done because it was illegal?

 

Answer. No. 80

 

Similarly, the man who for ten years headed FBI’s Intelligence Division testifed that:

 

… never once did I hear anybody, including myself, raise the question: “Is this course of action which we have agreed upon lawful, is it legal, is it ethical or moral.” We never gave any thought to this line of reasoning, because we were just naturally pragmatic. 81

 

Although the statutory law and the Constitution were often not “[given] a thought”, 82 there was a general attitude that intelligence needs were responsive to a higher law. Thus, as one witness testified in justifying the FBI’s mail opening program:

 

It was my assumption that what we were doing was justified by what we had to do . . . the greater good, the national security. 83

 

5. Deficiencies in Accountability and Control

 

The overwhelming number of excesses continuing over a prolonged period of time were due in large measure to the fact that the system of checks and balances — created in our Constitution to limit abuse of Governmental power — was seldom applied to the intelligence community. Guidance and regulation from outside the intelligence agencies — where it has been imposed at all — has been vague. Presidents and other senior Executive officials, particularly the Attorneys General, have virtually abdicated their Constitutional responsibility to oversee and set standards for intelligence activity. Senior government officials generally gave the agencies broad, general mandates or pressed for immediate results on pressing problems. In neither case did they provide guidance to prevent excesses and their broad mandates and pressures themselves often resulted in excessive or improper intelligence activity.

 

Congress has often declined to exercise meaningful oversight, and on occasion has passed laws or made statements which were taken by intelligence agencies as supporting overly-broad investigations.

 

On the other hand, the record reveals instances when intelligence agencies have concealed improper activities from their superiors in the Executive branch and from the Congress, or have elected to disclose only the less questionable aspects of their activities.

 

There has been, in short, a, clear and sustained failure by those responsible to control the intelligence community and to ensure its accountability. There has been an equally clear and sustained failure by intelligence agencies to fully inform the proper authorities of their activities and to comply with directives from those authorities.

 

6. The Adverse Impact of Improper Intelligence Activity

 

Many of the illegal or improper disruptive efforts directed against American citizens and domestic organizations succeeded in injuring their targets. Although it is sometimes difficult to prove that a target’s misfortunes were caused by a counter-intelligence program directed against him, the possibility that an arm of the Untied States Government intended to cause the harm and might have been responsible is itself abhorrant.

 

The Committee has observed numerous examples of the impact of intelligence operations. Sometimes the harm was readily apparent — destruction of marriages, loss of friends or jobs. Sometimes the attitudes of the public and of Government officials responsible for formulating policy and resolving vital issues were influenced by distorted intelligence. But the most basic harm was to the values of privacy and freedom which our Constitution seeks to protect and which intelligence activity infringed on a broad scale.

 

(a) General Efforts to Discredit. — Several efforts against individuals and groups appear to have achieved their stated aims. For example:

 

— A Bureau Field Office reported that the anonymous letter it had sent to an activist’s husband accusing his wife of infidelity “contributed very strongly” to the subsequent breakup of the marriage. 84

 

— Another Field Office reported that a draft counsellor deliberately, and falsely, accused of being an FBI informant was “ostracized” by his friends and associates. 85

 

— Two instructors were reportedly put on probation after the Bureau sent an anonymous letter to a university administrator about their funding of an anti-administration student newspaper. 86

 

— The Bureau evaluated its attempts to “put a stop” to a contribution to the Southern Christian Leadership Conference as “quite successful.” 87

 

— An FBI document boasted that a “pretext” phone call to Stokeley Carmichael’s mother telling her that members of the Black Panther Party intended to kill her son left her “shocked”. The memorandum intimated that the Bureau believed it had been responsible for Carmichael’s flight to Africa the following day. 88

 

(b) Media Manipulation. — The FBI has attempted covertly to influence the public’s perception of persons and organizations by dissemminating derogatory information to the press, either anonymously or through “friendly” news contacts. The impact of those articles is generally difficult to measure, although in some cases there are fairly direct connections to injury to the target. The Bureau also attempted to influence media reporting which would have any impact on the public image of the FBI. Examples include:

 

— Planting a series of derogatory articles about Martin Luther King, Jr., and the Poor People’s Campaign. 89

 

For example, in anticipation of the 1968 “poor people’s march on Washington, D.C.,” Bureau Headquarters granted authority to furnish “cooperative news media sources” an article “designed to curtail success of Martin Luther King’s fund raising.” 90 Another memorandum illustrated how “photographs of demonstrators” could be used in discrediting the civil rights movement. Six photographs of participants in the poor people’s campaign in Cleveland accompanied the memorandum with the following note attached: “These [photographs] show the militant aggressive appearance of the participants and might be of interest to a cooperative news source.” 91 Information on the Poor People’s Campaign was provided by the FBI to friendly reporters on the condition that “the Bureau must not be revealed as the source.” 92

 

— Soliciting information from Field Offices “on a continuing basis” for “prompt . . . dissemination to the news media . . . to discredit the New Left movement and its adherents.” The Headquarters directive requested, among other things, that:

 

specific data should be furnished depicting the scurrilous and depraved nature, of many of the characters, activities, habits, and living conditions representative of New Left adherents.

 

Field Offices were to be exhorted that: “Every avenue of possible embarrassment must be vigorously and enthusiastically explored.” 93

 

— Ordering Field Offices to gather information which would disprove allegations by the “liberal press, the bleeding hearts, and the forces on the left” that the Chicago police used undue force in dealing with demonstrators at the 1968 Democratic Convention. 95

 

— Taking advantage of a close relationship with the Chairman of the Board — described in an FBI memorandum as “our good friend”– of a magazine with national circulation to influence articles which related to the FBI. For example, through this relationship the Bureau: “squelched” an “unfavorable article against the Bureau” written by a free-lance writer about an FBI investigation; “postponed publication” of an article on another FBI case; “forestalled publication” of an article by Dr. Martin Luther King, Jr.; and received information about proposed editing of King’s articles. 96

 

(c) Distorting Data to Influence Government Policy and Public Perceptions

 

Accurate intelligence is a prerequisite to sound government policy. However, as the past head of the FBI’s Domestic Intelligence Division reminded the Committee:

 

The facts by themselves are not too meaningful. They are something like stones cast into a heap. 97

 

On certain crucial subjects the domestic intelligence agencies reported the “facts” in ways that gave rise to misleading impressions.

 

For example, the FBI’s Domestic Intelligence Division initially discounted as an “obvious failure” the alleged attempt’s of Communists to influence the civil rights movement. 98 Without any significant change in the factual situation, the Bureau moved from the Division’s conclusion to Director Hoover’s public congressional testimony characterizing Communist influence on the civil rights movement as “vitally important.” 98a

 

FBI reporting on protests against the Vietnam War provides another example, of the manner in which the information provided to decision-makers can be skewed. In acquiescence with a judgment already expressed by President Johnson, the Bureau’s reports on demonstrations against the War in Vietnam emphasized Communist efforts to influence the anti-war movement and underplayed the fact that the vast majority of demonstrators were not Communist controlled. 99

 

(d) “Chilling” First Amendment Rights. — The First Amendment protects the Rights of American citizens to engage in free and open discussions, and to associate with persons of their choosing. Intelligence agencies have, on occasion, expressly attempted to interfere with those rights. For example, one internal FBI memorandum called for “more interviews” with New Left subjects “to enhance the paranoia endemic in these circles” and “get the point across there is an FBI agent behind every mailbox.” 100

 

More importantly, the government’s surveillance activities in the aggregate — whether or not expressly intended to do so — tends, as the Committee concludes at p. 290 to deter the exercise of First Amended Rights by American citizens who become aware of the government’s domestic intelligence program.

 

(e) Preventing the Free Exchange of Ideas. — Speakers, teachers, writers, and publications themselves were targets of the FBI’s counterintelligence program. The FBI’s efforts to interfere with the free exchange of ideas included:

 

— Anonymously attempting to prevent an alleged “Communist-front” group from holding a forum on a midwest campus, and then investigating the judge who ordered that the meeting be allowed to proceed. 101

 

— Using another “confidential source” in a foundation which contributed to a local college to apply pressure on the school to fire an activist professor.

 

— Anonymously contacting a university official to urge him to “persuade” two professors to stop funding a student newspaper, in order to “eliminate what voice the New Left has” in the area.

 

— Targeting the New Mexico Free University for teaching “confrontation politics” and “draft counseling training”. 102

 

7. Cost and Value

 

Domestic intelligence is expensive. We have already indicated the cost of illegal and improper intelligence activities in terms of the harm to victims, the injury to constitutional values, and the damage to the democratic process itself. The cost in dollars is also significant. For example, the FBI has budgeted for fiscal year 1976 over $7 million for its domestic security informant program, more than twice the amount it spends on informants against organized crime. 103 The aggregate budget for FBI domestic security intelligence and foreign counterintelligence is at least $80 million. 104 In the late 1960s and early 1970s, when the Bureau was joined by the CIA, the military, and NSA in collecting information about the anti-war movement and black activists, the cost was substantially greater.

 

Apart from the excesses described above, the usefulness of many domestic intelligence activities in serving the legitimate goal of protecting society has been questionable. Properly directed intelligence investigations concentrating upon hostile foreign agents and violent terrorists can produce valuable results. The Committee has examined cases where the FBI uncovered “illegal” agents of a foreign power engaged in clandestine intelligence activities in violation of federal law. Information leading to the prevention of serious violence has been acquired by the FBI through its informant penetration of terrorist groups and through the inclusion in Bureau files of the names of persons actively involved with such groups. 105 Nevertheless, the most sweeping domestic intelligence surveillance programs have produced surprisingly few useful returns in view of their extent. For example:

 

— Between 1960 and 1974, the FBI conducted over 500,000 separate investigations of persons and groups under the “subversive” category, predicated on the possibility that they might be likely to overthrow the government of the United States. 106 Yet not a single individual or group has been prosecuted since 1957 under the laws which prohibit planning or advocating action to overthrow the government and which are the main alleged statutory basis for such FBI investigations. 107

 

— A recent study by the General Accounting Office has estimated that of some 17,528 FBI domestic intelligence investigations of individuals in 1974, only 1.3 percent resulted in prosecution and conviction, and in only “about 2 percent” of the cases was advance knowledge of any activity — legal or illegal — obtained. 108

 

— One of the main reasons advanced for expanded collection of intelligence about urban unrest and anti-war protest was to help responsible officials cope with possible violence. However, a former White House official with major duties in this area under the Johnson administration has concluded, in retrospect, that “in none of these situations . . . would advance intelligence about dissident groups [have] been of much help,” that what was needed was “physical intelligence” about the geography of major cities, and that the attempt to “predict violence” was not a “successful undertaking” 109

 

— Domestic intelligence reports have sometimes even been counterproductive. A local police chief, for example, described FBI reports which led to the positioning of federal troops near his city as:

 

. . . almost completely composed of unsorted and unevaluated stories, threats, and rumors that had crossed my desk in New Haven. Many of these had long before been discounted by our Intelligence Division. But they had made their way from New Haven to Washington, had gained completely unwarranted credibility, and had been submitted by the Director of the FBI to the President of the United States. They seemed to present a convincing picture of impending holocaust. 110

 

In considering its recommendations, the Committee undertook an evaluation of the FBI’s claims that domestic intelligence was necessary to combat terrorism, civil disorders, “subversion,” and hostile foreign intelligence activity. The Committee reviewed voluminous materials bearing on this issue and questioned Bureau officials, local police officials, and present and former federal executive officials.

 

We have found that we are in fundamental agreement with the wisdom of Attorney General Stone’s initial warning that intelligence agencies must not be “concerned with political or other opinions of individuals” and must be limited to investigating essentially only “such conduct as is forbidden by the laws of the United States.” The Committee’s record demonstrates that domestic intelligence which departs from this standard raises grave risks of undermining the democratic process and harming the interests of individual citizens. This danger weighs heavily against the speculative or negligible benefits of the ill-defined and overbroad investigations authorized in the past. Thus, the basic purpose of the recommendations contained in Part IV of this report is to limit the FBI to investigating conduct rather than ideas or associations.

 

The excesses of the past do not, however, justify depriving the United States of a clearly defined and effectively controlled domestic intelligence capability. The intelligence services of this nation’s international adversaries continue to attempt to conduct clandestine espionage operations within the United States. 111 Our recommendations provide for intelligence investigations of hostile foreign intelligence activity.

 

Moreover, terrorists have engaged in serious acts of violence which have brought death and injury to Americans and threaten further such acts. These acts, not the politics or beliefs of those who would commit them, are the proper focus for investigations to anticipate terrorist violence. Accordingly, the Committee would permit properly controlled intelligence investigations in those narrow circumstances. 112

 

Concentration on imminent violence can avoid the wasteful dispersion of resources which has characterized the sweeping (and fruitless) domestic intelligence investigations of the past. But the most important reason for the fundamental change in the domestic intelligence operations which our Recommendations propose is the need to protect the constitutional Rights of Americans.

 

In light of the record of abuse revealed by our inquiry, the Committee is not satisfied with the position that mere exposure of what has occurred in the past will prevent its recurrence. Clear legal standards and effective oversight and controls are necessary to ensure that domestic intelligence activity does not itself undermine the democratic system it is intended to protect.

 

 

Footnotes:

 

1 S. Res. 21, see. 2 (12). The Senate specifically charged this Committee with investigating “the conduct of domestic intelligence, or counterintelligence operations against United States citizens.” (See. 2(2) ) The resolution added several examples of specific charges of possible “illegal, improper or unethical” governmental intelligence activities as matters to be fully investigated (See. (2) (1)-CIA domestic activities; See. (2) (3)-Huston Plan: See. (2) (10)-surreptitous entries, electronic surveillance, mail opening.)

 

2 Just as the term “Intelligence activity” encompasses activities that go far beyond the collection and analysis of information, the term “intelligence community- includes persons ranging from the President to the lowest field operatives of the intelligence agencies.

 

3 The Alien Act provided for the deportation of all aliens judged “dangerous to the peace and safety” of the nation. (1 Stat. 570, June 25, 1798) The Sedition Act made it a federal crime to publish “false, scandalous and malicious writing” against the United States government, the Congress, or the President with the intent to “excite against them” the “hatred of the good people of the United States” or to “encourage or abet any hostile designs of any foreign nation against the United States.” (1 Stat. 596, July 14, 1798) There were at least 25 arrests, 15 indictments, and 10 convictions under the Sedition Act. (See James M. Smith, Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties (Ithaca: Cornell U. Press, 1956).)

 

4 Francis Biddle, In Brief Authority (Garden City; Doubleday, 1962), p. 224; Roger Daniels, Concentration Camps USA: Japanese Americans and World War II (New York: Holt, Rinehart. and Winston, 1971), p. 66.

 

5 Many victims of intelligence activities have claimed in the past that they were being subjected to hostile action by their government. Prior to this investigation, most Americans would have dismissed these allegations. Senator Philip Hart aptly described this phenomenon in the course of the Committee’s public hearings on domestic intelligence activities:

 

“As I’m sure others have, I have been told for years by, among others, some of my own family, that this is exactly what the Bureau was doing all of the time, and in my great wisdom and high office, I assured them that they were [wrong]-it just wasn’t true. it couldn’t happen. They wouldn’t do it. What you have described is a series of illegal actions intended squarely to deny First Amendment rights to some Americans. That is what my children have told me was going on. Now I did not believe it.

 

“The trick now, as I see it, Mr. Chairman, is for this committee to be able to figure out how to persuade the people of this country that indeed it did go on. And how shall we insure that it will never happen again? But it will happen repeatedly unless we can bring ourselves to understand and accept that it did go on.” Senator Philip Hart, 11/18/75, Hearings, Vol. 6, p. 41.

 

6 As the Supreme court noted in Miranda v. Arizona, 384 U.S. 436, 483. 486 (1966), even before the Court required law officers to advise criminal suspects of their constitutional rights before custodial interrogation, the FBI had “an exemplary record” in this area-a practice which the Court said should be emulated by state and local law enforcement agencies.” This commendable FBI tradition in the general field of law enforcement presents a sharp contrast to the widespread disregard of individual rights in FBI domestic intelligence operations examined in the balance of this Report.

 

7 New York Times, 5/13/24.

 

8 Mary Jo Cook testimony, 12/2/75), Hearings, Vol. 6, p. 111; James B. Adams testimony, 12/2/75. Hearings, Vol. 6, p. 135.

 

9 Tom Charles Huston testimony, 9/23/75, Hearings, Vol. 2, p. 45.

 

10 “The Federal Prosecutor”, Journal of the American Judicature Society (June, 1940), p. 18.

 

11 Memorandum from the FBI to the Senate Select Committee, 10/6/75.

 

12 Memorandum from the FBI to the Senate Select Committee, 10/6/75.

 

13 James Angleton testimony, 9/17/75, p. 28.

 

14 See Mail Opening Report: Section IV, “FBI Mail Openings.”

 

15 Chief, International Terrorist Group testimony, Commission on CIA Activities Within the United States, 3/10/75, pp. 1485-1489.

 

16 Statement by the Chairman, 11/6/75; re: SHAMROCK, Hearings, Vol, 5, pp. 57-60.

 

17 See Military Surveillance Report: Section 11, “The Collection of Information about the Political Activities of Private Citizens and Private Organizations.”

 

18 See IRS Report: Section II, “Selective Enforcement for Non-tax Purposes.”

 

19 Memorandum from A. H. Belmont to L. V. Boardman, 12/8/54. Many of the memoranda cited in this report were actually written by FBI personnel other than those whose names were indicated at the foot of the document as the author. Citation in this report of specific memoranda by using the names of FBI personnel which so appear is for documentation purposes only and is not intended to presume authorship or even knowledge in all cases.

 

20 Memorandum from Kansas City Field Office to FBI Headquarters, 10/20/70. (Hearings, Vol. 6, Exhibit 54-3)

 

21 Memorandum from New York Field Office to FBI Headquarters, 5/28/69, P. 2. (Hearings, Vol. 6, Exhibit 54–1)

 

22 Memorandum from Baltimore Field Office to FBI Headquarters, 5/11/70, P. 2.

 

23 Memorandum from New York Field Office to FBI Headquarters, 4/14/64.

 

24 Name deleted by Committee to protect privacy.

 

25 Memorandum from FBI Headquarters to New York Meld Office 4/24/64, re CPUSA, Negro question.

 

26 James Adams testimony, 12/2/75, Hearings, Vol. 6, p. 137.

 

27 Memorandum from F. T. Baumgardner to William C. Sullivan, 5/29/6.3.

 

28 Memorandum from Oklahoma City Field Office to FBI Headquarters. 9/19/41. See Development of FBI Domestic Intelligence Investigations: Section IV, “FBI Target Lists.”

 

29 Chief Robert Shackleford testimony, 2/6/76, p. 91.

 

30 Senate Judiciary Subcommittee on Constitutional Rights. Report. 1973. p. 57.

 

31 Senate Select Committee Staff summary of HTLINGUAL File Review, 9/5/75.

 

32 FBI Summary Memorandum, 1/31/75, re: Coverage of TX. Presentation.

 

33 Letter from J. Edgar Hoover to Marvin Watson, 7/15/66.

 

34 See Military Report: See. II, “The Collection of information About the Political Activities of Private citizens and Private Organizations.”

 

35 Memorandum from FBI headquarters to all SAC’s, 11/4/70.

 

36 Charles Brennan testimony, 9/25/75, Hearings, vol. 2 p. 117.

 

37 Memorandum from FBI Headquarters to all SAC’s, 7/5/68.

 

38 Abstracts of New Left Documents #161, 115, 43. Memorandum from Washington Field Office to FBI Headquarters, 1/21/69.

 

39 Memorandum from FBI Headquarters to Cleveland Field Office, 11/29/68.

 

40 FBI manual of Instructions, See. 87, B (2-f).

 

41 Memorandum from FBI Headquarters to San Antonio Field Office, 7/23/69.

 

42 Memorandum from Stephen Early to J. Edgar Hoover, 5/21/40; 6/17/40.

 

43 Letter from J. Edgar Hoover to George Allen, 12/3/46.

 

44 Letter from J. Edgar Hoover to Maj. Gen. Harry Vaughn, 2/15/47.

 

45 Letter from J. Edgar Hoover to M. T. Connelly, 1/27/50.

 

46 Letter from J. Edgar Hoover to Dillon Anderson, 11/7/55.

 

47 Letter from J. Edgar Hoover to Robert Cutler, 2/13/58.

 

47a Letters from T. Edgar Hoover to Robert Cutler, 4/21/53-4/27/53.

 

48 Memorandum from J. Edgar Hoover to the Attorney General, 2/16/61.

 

49 Memorandum from J. Edgar Hoover to the Attorney General, 2/14/61.

 

50 Memorandum from J. Edgar Hoover to the Attorney General, 2/16/61.

 

51 Memorandum from J. Edgar Hoover to the Attorney General 6/26/62.

 

52 Memorandum from Charles Brennan to William Sullivan, 12/19/66.

 

53 Memorandum from J. Edgar Hoover to the Attorney General, 2/18/61.

 

54 Memorandum from T. Edgar Hoover to Bill Moyers, 10/27/64.

 

55 Memorandum from C. D. DeLoach to John Mohr, 8/29/64.

 

56 Letter from J. Edgar Hoover to H.R. Haldeman, 6/25/70.

 

57 Memorandum from FBI Headquarters, to San Francisco Field Office, 11/26/68.

 

58 Memorandum from [Midwest City] Field Office to FBI Headquarters, 8/l/68; memorandum from FBI Headquarters to [Midwest City] Field Office, 8/6/68.

 

59 Memorandum from Columbia Field Office to FBI Headquarters, 11/4/70, re: COINTELPRO-New Left.

 

60 Memorandum from Cbarles Brennan to William Sullivan. 8/15/68.

 

61 Memorandum from Chicago Field Office to FBI Headquarters, 9/9/68.

 

62 Memorandum from FBI Headquarters to Chicago Field Office, 1/30/69 re: COINTELPRO, Black Nationalist-Hate Groups.

 

63 William C. Sullivan testimony, 11/1/75, p. 49.

 

64 memorandum from Baumgardner to Sullivan, 2/4/64.

 

65 Memorandum from Chicago Field Office to FBI Headquarters, 12/16/68; memorandum from FBI Headquarters to Chicago Field Office, 1/30/69, re: COINTELPRO, Black Nationalist-Hate Groups.

 

66 William C. Sullivan, 11/1/75, pp. 104-105.

 

67 Andrew Young testimony, 2/19/76. p. 8.

 

68 Memorandum from Sullivan to Belmont, 8/30/63. Memorandum from Sullivan to Belmont, 1/8/64.

 

70 Memorandum from FBI Headquarters to all SACs, 3/4/68.

 

71 See Mail Opening Report: Section II, “Legal Considerations and the ‘Flap’ Potential.”

 

72 See NSA Report: Section I. “Introduction and Summary.”

 

73 Memorandum from Attorney General Brownell to J. Edgar Hoover, 5/20/54.

 

74 See finding on Political Abuse. To protect the privacy of the targeted individual, the Committee has omitted the citation to the memorandum concerning the example of purely personal information.

 

75 Memorandum from W. C. Sullivan to C. D. DeLoach 7/19/66, p. 2.

 

76 General Accounting Office Report on Domestic intelligence Operations of the FBI. 9/75.

 

77 Mary Jo Cook testimony. 12/2/75, Hearings, Vol. 6. p. 111.

 

78 Gary Rowe deposition, 10/17/75, p. 9.

 

79 Special Agent No. 3 deposition, 11/21/75, p. 12.

 

80 Huston testimony 9/23/75, Hearings, Vol. 2,1).

 

81 William Sullivan testimony, 11/1/75, pp. 92-93.

 

82 The quote is from a Bureau official who had supervised for the “Black Nationalist Hate. Group” COINTELPRO.

 

“Question. Did anybody at any time that you remember during the course of the program, discuss the Constitutionality or the legal authority, or anything else like that?

 

“Answer. No, we never gave it a thought. As far as I know, nobody engaged or ever had any idea that they were doing anything other than what was the policy of the Bureau which had been policy for a long time.” (George Moore deposition, 11/3/75, p. 83.)

 

83 Branagan, 10/9/75, p. 41.

 

84 Memorandum from St. Louis Field Office to FBI Headquarters, 6/19/70.

 

85 Memorandum from ‘San Diego Field Office to FBI Headquarters, 4/30/69.

 

86 Memorandum from Mobile Field Office to FBI Headquarters, 12/9/70.

 

87 Memorandum from Wick to DeLoach, 11/9/66.

 

88 Memorandum from New York Field Office to FBI Headquarters, 9/9/68.

 

89 See King Report: Sections V and VII.

 

90 Memorandum from G. C. Moore to W. C. Sullivan, 10/26/68.

 

91 Memorandum from G. C. Moore to W. C. Sullivan, 5/17/68.

 

92 Memorandum from FBI Headquarters to Miami Field Office, 7/9/68.

 

93 Memorandum from C. D. Brennan to W. C. Sullivan, 5/22/68.

 

94 omitted in original.

 

95 Memorandum from FBI Headquarters to Chicago Field Office, 8/28/68.

 

96 Memorandum from W. H. Stapleton to DeLoach, 11/3/64.

 

97 Sullivan. 11/1/75, p. 48.

 

98 Memorandum from Baumgardner to Sullivan. 8/26/63 p. 1. Hoover himself construed the initial Division estimate to mean that Communist influence was “infinitesimal.”

 

98a See Finding on Political Abuse, p. 225.

 

99 See Finding on Political Abuse. p. 225.

 

100 “New Left Notes — Philadelphia.” 9/16/70, Edition #1.

 

101 Memorandum from Detroit Field Office to FBI Headquarters 10/26/60; Memorandum from P13T Headquarters to Detroit Field Office 10/27, 28, 31/60; Memorandum from Baumgardner to Belmont, 10/26/60.

 

102 See COINTELPRO Report: Section 111. “The Goals of COINTELPRO: Preventing or disrupting the exercise of First Amendment Rights.”

 

103 The budget for FBI informant programs includes not only the payments to informants for their services and expenses, but also the expenses of FBI personnel who supervise informants, their support costs, and administrative overhead. (Justice Department letter to Senate Select Committee, 3/2/76).

 

104 The Committee is withholding the portion of this figure spent on domestic security intelligence (informants and other investigations combined) to prevent hostile foreign intelligence services from deducing the amount spent on counterespionage. The $80 million figure does not include all costs of separate FBI activities which may be drawn upon for domestic security intelligence purposes. Among these are the Identification Division (maintaining fingerprint records), the Files and Communications Division (managing the storage and retrieval of investigative and intelligence files), and the FBI Laboratory.

 

105 Examples of valuable informant reports include the following: one informant reported a plan to ambush police officers and the location of a cache of weapons and dynamite; another informant reported plans to transport illegally obtained weapons to Washington. D.C.: two informants at one meeting discovered plans to dynamite two city blocks. All of these plans were frustrated by further investigation and protective measures or arrest. (FBI memorandum to Select Committee, 12/10/75; Senate Select Committee Staff memorandum: Intelligence Cases in Which the FBI Prevented Violence, undated.)

 

One example of the use of information in Bureau files involved a “name check” at Secret Service request on certain persons applying for press credentials to cover the visit of a foreign head of state. The discovery of data in FBI files indicating that one such person bad been actively involved with violent groups led to further investigation and ultimately the issuanoe of a search warrant. The search produced evidence, including weapons, of a plot to assassinate the foreign head of state. (FBI memorandum to Senate Select Committee, 2/23/76)

 

106 This figure is the number of “investigative matters” handled by the FBI in this area, including as separate items the investigative leads in particular cases which are followed up by various field offices. (FBI memorandum to Select Committee, 10/6/75.)

 

107 Schackelford 2/13/76, p. 32. This official does not recall any targets of “subversive” investigations having been even referred to a Grand Jury under these statutes since the 1950s.

 

108 FBI Domestic Intelligence Operations — Their Purpose and Scope: Issues That Need To Be Resolved,” Report by the Comptroller General to the House Judiciary Committee, 2/24/76, pp. 138-147. The FBI contends that these statistics may be unfair in that they concentrate on investigations of individuals rather than groups. (Ibid., Appendix V) In response, GAO states that its “sample of organization and control files was sufficient to determine that generally the FBI did not report advance knowledge of planned violence.” In most of the fourteen instances where such advance knowledge was obtained, it related to “such activities as speeches, demonstrations or meetings-all essentially nonviolent.” (Ibid.. p, 144)

 

109 Joseph Califano testimony. 1/27/76, pp. 7-8.

 

110 James Ahern testimony, 1/20/76, pp. 16, 17.

 

111 An indication of the scope of the problem is the increasing number of official representatives of communist governments in the United States. For example the number of Soviet officials in this country has increased from 333 in 1961 to 1,079 by early 1975. There were 2,683 East-West exchange visitors and 1,500 commercial visitors in 1974. (FBI Memorandum, “Intelligence Activities Within the United States by Foreign Governments,” 3/20/75.)

 

112 According to the FBI, there were 89 bombings attributable to terrorist activity in 1975, as compared with 45 in 1974 and 24 in 1973. Six persons died in terrorist-claimed bombings and 76 persons were injured in 1975. Five other deaths were reported in other types of terrorist incidents. Monetary damage reported in terrorist bombings exceeded 2.7 million dollars. It should be noted, however, that terrorist bombings are only a fraction of the total number of bombings in this country. Thus, the 89 terrorist bombings in 1975 were among a total of over 1,900 bombings, most of which were not, according to the FBI , attributable clearly to terrorist activity. (FBI memorandum to Senate Select Committee, 2/23/76.)

Categories: Govenance & Privacy

H. R. 6304 FISA Amendments Act of 2008

March 12th, 2014 No comments

One Hundred Tenth Congress of the United States of America

 

At the Second Session

 

H. R. 6304

 

AN ACT

 

To amend the Foreign Intelligence Surveillance Act of 1978 to establish a procedure for authorizing certain acquisitions of foreign intelligence, and for other purposes.

 

1.

Short title; table of contents

(a)

Short title

This Act may be cited as the “Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008” or the “FISA Amendments Act of 2008”.

(b)

Table of contents

The table of contents for this Act is as follows:

Sec. 1. Short title; table of contents.

Title I—Foreign intelligence surveillance

Sec. 101. Additional procedures regarding certain persons outside the United States.

Sec.  102. Statement of exclusive means by which electronic surveillance and interception of certain communications may be conducted.

Sec. 103. Submittal to Congress of certain court orders under the Foreign Intelligence Surveillance Act of 1978.

Sec. 104. Applications for court orders.

Sec. 105. Issuance of an order.

Sec. 106. Use of information.

Sec. 107. Amendments for physical searches.

Sec. 108. Amendments for emergency pen registers and trap and trace devices.

Sec. 109. Foreign Intelligence Surveillance Court.

Sec. 110. Weapons of mass destruction.

Title II—Protections for electronic communication service providers

Sec. 201. Procedures for implementing statutory defenses under the Foreign Intelligence Surveillance Act of 1978.

Sec. 202. Technical amendments.

Title III—Review of previous actions

Sec. 301. Review of previous actions.

Title IV—Other provisions

Sec. 401. Severability.

Sec. 402. Effective date.

Sec. 403. Repeals.

Sec. 404. Transition procedures.

I

Foreign intelligence surveillance

101.

Additional procedures regarding certain persons outside the United States

(a)

In general

The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended—

(1)

by striking title VII; and

(2)

by adding at the end the following:

VII

Additional procedures regarding certain persons outside the United States

701.

Definitions

(a)

In general

The terms agent of a foreign power, Attorney General, contents, electronic surveillance, foreign intelligence information, foreign power, person, United States, and United States person have the meanings given such terms in section 101, except as specifically provided in this title.

(b)

Additional definitions

(1)

Congressional intelligence committees

The term congressional intelligence committees means—

(A)

the Select Committee on Intelligence of the Senate; and

(B)

the Permanent Select Committee on Intelligence of the House of Representatives.

(2)

Foreign Intelligence Surveillance Court; Court

The terms Foreign Intelligence Surveillance Court and Court mean the court established under section 103(a).

(3)

Foreign Intelligence Surveillance Court of Review; Court of Review

The terms Foreign Intelligence Surveillance Court of Review and Court of Review mean the court established under section 103(b).

(4)

Electronic communication service provider

The term electronic communication service provider means—

(A)

a telecommunications carrier, as that term is defined in section 3 of the Communications Act of 1934 (47 U.S.C. 153);

(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; or

(E)

an officer, employee, or agent of an entity described in subparagraph (A), (B), (C), or (D).

(5)

Intelligence community

The term intelligence community has the meaning given the term in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)).

702.

Procedures for targeting certain persons outside the United States other than United States persons

(a)

Authorization

Notwithstanding any other provision of law, upon the issuance of an order in accordance with subsection (i)(3) or a determination under subsection (c)(2), the Attorney General and the Director of National Intelligence may authorize jointly, for a period of up to 1 year from the effective date of the authorization, the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.

(b)

Limitations

An acquisition authorized under subsection (a)—

(1)

may not intentionally target any person known at the time of acquisition to be located in the United States;

(2)

may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States;

(3)

may not intentionally target a United States person reasonably believed to be located outside the United States;

(4)

may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and

(5)

shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.

(c)

Conduct of acquisition

(1)

In general

An acquisition authorized under subsection (a) shall be conducted only in accordance with—

(A)

the targeting and minimization procedures adopted in accordance with subsections (d) and (e); and

(B)

upon submission of a certification in accordance with subsection (g), such certification.

(2)

Determination

A determination under this paragraph and for purposes of subsection (a) is a determination by the Attorney General and the Director of National Intelligence that exigent circumstances exist because, without immediate implementation of an authorization under subsection (a), intelligence important to the national security of the United States may be lost or not timely acquired and time does not permit the issuance of an order pursuant to subsection (i)(3) prior to the implementation of such authorization.

(3)

Timing of determination

The Attorney General and the Director of National Intelligence may make the determination under paragraph (2)—

(A)

before the submission of a certification in accordance with subsection (g); or

(B)

by amending a certification pursuant to subsection (i)(1)(C) at any time during which judicial review under subsection (i) of such certification is pending.

(4)

Construction

Nothing in title I shall be construed to require an application for a court order under such title for an acquisition that is targeted in accordance with this section at a person reasonably believed to be located outside the United States.

(d)

Targeting procedures

(1)

Requirement to adopt

The Attorney General, in consultation with the Director of National Intelligence, shall adopt targeting procedures that are reasonably designed to—

(A)

ensure that any acquisition authorized under subsection (a) is limited to targeting persons reasonably believed to be located outside the United States; and

(B)

prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.

(2)

Judicial review

The procedures adopted in accordance with paragraph (1) shall be subject to judicial review pursuant to subsection (i).

(e)

Minimization procedures

(1)

Requirement to adopt

The Attorney General, in consultation with the Director of National Intelligence, shall adopt minimization procedures that meet the definition of minimization procedures under section 101(h) or 301(4), as appropriate, for acquisitions authorized under subsection (a).

(2)

Judicial review

The minimization procedures adopted in accordance with paragraph (1) shall be subject to judicial review pursuant to subsection (i).

(f)

Guidelines for compliance with limitations

(1)

Requirement to adopt

The Attorney General, in consultation with the Director of National Intelligence, shall adopt guidelines to ensure—

(A)

compliance with the limitations in subsection (b); and

(B)

that an application for a court order is filed as required by this Act.

(2)

Submission of guidelines

The Attorney General shall provide the guidelines adopted in accordance with paragraph (1) to—

(A)

the congressional intelligence committees;

(B)

the Committees on the Judiciary of the Senate and the House of Representatives; and

(C)

the Foreign Intelligence Surveillance Court.

(g)

Certification

(1)

In general

(A)

Requirement

Subject to subparagraph (B), prior to the implementation of an authorization under subsection (a), the Attorney General and the Director of National Intelligence shall provide to the Foreign Intelligence Surveillance Court a written certification and any supporting affidavit, under oath and under seal, in accordance with this subsection.

(B)

Exception

If the Attorney General and the Director of National Intelligence make a determination under subsection (c)(2) and time does not permit the submission of a certification under this subsection prior to the implementation of an authorization under subsection (a), the Attorney General and the Director of National Intelligence shall submit to the Court a certification for such authorization as soon as practicable but in no event later than 7 days after such determination is made.

(2)

Requirements

A certification made under this subsection shall—

(A)

attest that—

(i)

there are procedures in place that have been approved, have been submitted for approval, or will be submitted with the certification for approval by the Foreign Intelligence Surveillance Court that are reasonably designed to—

(I)

ensure that an acquisition authorized under subsection (a) is limited to targeting persons reasonably believed to be located outside the United States; and

(II)

prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States;

(ii)

the minimization procedures to be used with respect to such acquisition—

(I)

meet the definition of minimization procedures under section 101(h) or 301(4), as appropriate; and

(II)

have been approved, have been submitted for approval, or will be submitted with the certification for approval by the Foreign Intelligence Surveillance Court;

(iii)

guidelines have been adopted in accordance with subsection (f) to ensure compliance with the limitations in subsection (b) and to ensure that an application for a court order is filed as required by this Act;

(iv)

the procedures and guidelines referred to in clauses (i), (ii), and (iii) are consistent with the requirements of the fourth amendment to the Constitution of the United States;

(v)

a significant purpose of the acquisition is to obtain foreign intelligence information;

(vi)

the acquisition involves obtaining foreign intelligence information from or with the assistance of an electronic communication service provider; and

(vii)

the acquisition complies with the limitations in subsection (b);

(B)

include the procedures adopted in accordance with subsections (d) and (e);

(C)

be supported, as appropriate, by the affidavit of any appropriate official in the area of national security who is—

(i)

appointed by the President, by and with the advice and consent of the Senate; or

(ii)

the head of an element of the intelligence community;

(D)

include—

(i)

an effective date for the authorization that is at least 30 days after the submission of the written certification to the court; or

(ii)

if the acquisition has begun or the effective date is less than 30 days after the submission of the written certification to the court, the date the acquisition began or the effective date for the acquisition; and

(E)

if the Attorney General and the Director of National Intelligence make a determination under subsection (c)(2), include a statement that such determination has been made.

(3)

Change in effective date

The Attorney General and the Director of National Intelligence may advance or delay the effective date referred to in paragraph (2)(D) by submitting an amended certification in accordance with subsection (i)(1)(C) to the Foreign Intelligence Surveillance Court for review pursuant to subsection (i).

(4)

Limitation

A certification made under this subsection is not required to identify the specific facilities, places, premises, or property at which an acquisition authorized under subsection (a) will be directed or conducted.

(5)

Maintenance of certification

The Attorney General or a designee of the Attorney General shall maintain a copy of a certification made under this subsection.

(6)

Review

A certification submitted in accordance with this subsection shall be subject to judicial review pursuant to subsection (i).

(h)

Directives and judicial review of directives

(1)

Authority

With respect to an acquisition authorized under subsection (a), the Attorney General and the Director of National Intelligence may direct, in writing, an electronic communication service provider to—

(A)

immediately provide the Government with all information, facilities, or assistance necessary to accomplish the acquisition in a manner that will protect the secrecy of the acquisition and produce a minimum of interference with the services that such electronic communication service provider is providing to the target of the acquisition; and

(B)

maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the acquisition or the aid furnished that such electronic communication service provider wishes to maintain.

(2)

Compensation

The Government shall compensate, at the prevailing rate, an electronic communication service provider for providing information, facilities, or assistance in accordance with a directive issued pursuant to paragraph (1).

(3)

Release from liability

No cause of action shall lie in any court against any electronic communication service provider for providing any information, facilities, or assistance in accordance with a directive issued pursuant to paragraph (1).

(4)

Challenging of directives

(A)

Authority to challenge

An electronic communication service provider receiving a directive issued pursuant to paragraph (1) may file a petition to modify or set aside such directive with the Foreign Intelligence Surveillance Court, which shall have jurisdiction to review such petition.

(B)

Assignment

The presiding judge of the Court shall assign a petition filed under subparagraph (A) to 1 of the judges serving in the pool established under section 103(e)(1) not later than 24 hours after the filing of such petition.

(C)

Standards for review

A judge considering a petition filed under subparagraph (A) may grant such petition only if the judge finds that the directive does not meet the requirements of this section, or is otherwise unlawful.

(D)

Procedures for initial review

A judge shall conduct an initial review of a petition filed under subparagraph (A) not later than 5 days after being assigned such petition. If the judge determines that such petition does not consist of claims, defenses, or other legal contentions that are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law, the judge shall immediately deny such petition and affirm the directive or any part of the directive that is the subject of such petition and order the recipient to comply with the directive or any part of it. Upon making a determination under this subparagraph or promptly thereafter, the judge shall provide a written statement for the record of the reasons for such determination.

(E)

Procedures for plenary review

If a judge determines that a petition filed under subparagraph (A) requires plenary review, the judge shall affirm, modify, or set aside the directive that is the subject of such petition not later than 30 days after being assigned such petition. If the judge does not set aside the directive, the judge shall immediately affirm or affirm with modifications the directive, and order the recipient to comply with the directive in its entirety or as modified. The judge shall provide a written statement for the record of the reasons for a determination under this subparagraph.

(F)

Continued effect

Any directive not explicitly modified or set aside under this paragraph shall remain in full effect.

(G)

Contempt of court

Failure to obey an order issued under this paragraph may be punished by the Court as contempt of court.

(5)

Enforcement of directives

(A)

Order to compel

If an electronic communication service provider fails to comply with a directive issued pursuant to paragraph (1), the Attorney General may file a petition for an order to compel the electronic communication service provider to comply with the directive with the Foreign Intelligence Surveillance Court, which shall have jurisdiction to review such petition.

(B)

Assignment

The presiding judge of the Court shall assign a petition filed under subparagraph (A) to 1 of the judges serving in the pool established under section 103(e)(1) not later than 24 hours after the filing of such petition.

(C)

Procedures for review

A judge considering a petition filed under subparagraph (A) shall, not later than 30 days after being assigned such petition, issue an order requiring the electronic communication service provider to comply with the directive or any part of it, as issued or as modified, if the judge finds that the directive meets the requirements of this section and is otherwise lawful. The judge shall provide a written statement for the record of the reasons for a determination under this paragraph.

(D)

Contempt of court

Failure to obey an order issued under this paragraph may be punished by the Court as contempt of court.

(E)

Process

Any process under this paragraph may be served in any judicial district in which the electronic communication service provider may be found.

(6)

Appeal

(A)

Appeal to the court of review

The Government or an electronic communication service provider receiving a directive issued pursuant to paragraph (1) may file a petition with the Foreign Intelligence Surveillance Court of Review for review of a decision issued pursuant to paragraph (4) or (5). The Court of Review shall have jurisdiction to consider such petition and shall provide a written statement for the record of the reasons for a decision under this subparagraph.

(B)

Certiorari to the supreme court

The Government or an electronic communication service provider receiving a directive issued pursuant to paragraph (1) may file a petition for a writ of certiorari for review of a decision of the Court of Review issued under subparagraph (A). The record for such review shall be transmitted under seal to the Supreme Court of the United States, which shall have jurisdiction to review such decision.

(i)

Judicial review of certifications and procedures

(1)

In general

(A)

Review by the foreign intelligence surveillance court

The Foreign Intelligence Surveillance Court shall have jurisdiction to review a certification submitted in accordance with subsection (g) and the targeting and minimization procedures adopted in accordance with subsections (d) and (e), and amendments to such certification or such procedures.

(B)

Time period for review

The Court shall review a certification submitted in accordance with subsection (g) and the targeting and minimization procedures adopted in accordance with subsections (d) and (e) and shall complete such review and issue an order under paragraph (3) not later than 30 days after the date on which such certification and such procedures are submitted.

(C)

Amendments

The Attorney General and the Director of National Intelligence may amend a certification submitted in accordance with subsection (g) or the targeting and minimization procedures adopted in accordance with subsections (d) and (e) as necessary at any time, including if the Court is conducting or has completed review of such certification or such procedures, and shall submit the amended certification or amended procedures to the Court not later than 7 days after amending such certification or such procedures. The Court shall review any amendment under this subparagraph under the procedures set forth in this subsection. The Attorney General and the Director of National Intelligence may authorize the use of an amended certification or amended procedures pending the Court’s review of such amended certification or amended procedures.

(2)

Review

The Court shall review the following:

(A)

Certification

A certification submitted in accordance with subsection (g) to determine whether the certification contains all the required elements.

(B)

Targeting procedures

The targeting procedures adopted in accordance with subsection (d) to assess whether the procedures are reasonably designed to—

(i)

ensure that an acquisition authorized under subsection (a) is limited to targeting persons reasonably believed to be located outside the United States; and

(ii)

prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.

(C)

Minimization procedures

The minimization procedures adopted in accordance with subsection (e) to assess whether such procedures meet the definition of minimization procedures under section 101(h) or section 301(4), as appropriate.

(3)

Orders

(A)

Approval

If the Court finds that a certification submitted in accordance with subsection (g) contains all the required elements and that the targeting and minimization procedures adopted in accordance with subsections (d) and (e) are consistent with the requirements of those subsections and with the fourth amendment to the Constitution of the United States, the Court shall enter an order approving the certification and the use, or continued use in the case of an acquisition authorized pursuant to a determination under subsection (c)(2), of the procedures for the acquisition.

(B)

Correction of deficiencies

If the Court finds that a certification submitted in accordance with subsection (g) does not contain all the required elements, or that the procedures adopted in accordance with subsections (d) and (e) are not consistent with the requirements of those subsections or the fourth amendment to the Constitution of the United States, 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—

(i)

correct any deficiency identified by the Court’s order not later than 30 days after the date on which the Court issues the order; or

(ii)

cease, or not begin, the implementation of the authorization for which such certification was submitted.

(C)

Requirement for written statement

In support of an order under this subsection, the Court shall provide, simultaneously with the order, for the record a written statement of the reasons for the order.

(4)

Appeal

(A)

Appeal to the court of review

The Government may file a petition with the Foreign Intelligence Surveillance Court of Review for review of an order under this subsection. The Court of Review shall have jurisdiction to consider such petition. For any decision under this subparagraph affirming, reversing, or modifying an order of the Foreign Intelligence Surveillance Court, the Court of Review shall provide for the record a written statement of the reasons for the decision.

(B)

Continuation of acquisition pending rehearing or appeal

Any acquisition affected by an order under paragraph (3)(B) may continue—

(i)

during the pendency of any rehearing of the order by the Court en banc; and

(ii)

if the Government files a petition for review of an order under this section, until the Court of Review enters an order under subparagraph (C).

(C)

Implementation pending appeal

Not later than 60 days after the filing of a petition for review of an order under paragraph (3)(B) directing the correction of a deficiency, the Court of Review shall determine, and enter a corresponding order regarding, whether all or any part of the correction order, as issued or modified, shall be implemented during the pendency of the review.

(D)

Certiorari to the supreme court

The Government may file a petition for a writ of certiorari for review of a decision of the Court of Review issued under subparagraph (A). The record for such review shall be transmitted under seal to the Supreme Court of the United States, which shall have jurisdiction to review such decision.

(5)

Schedule

(A)

Reauthorization of authorizations in effect

If the Attorney General and the Director of National Intelligence seek to reauthorize or replace an authorization issued under subsection (a), the Attorney General and the Director of National Intelligence shall, to the extent practicable, submit to the Court the certification prepared in accordance with subsection (g) and the procedures adopted in accordance with subsections (d) and (e) at least 30 days prior to the expiration of such authorization.

(B)

Reauthorization of orders, authorizations, and directives

If the Attorney General and the Director of National Intelligence seek to reauthorize or replace an authorization issued under subsection (a) by filing a certification pursuant to subparagraph (A), that authorization, and any directives issued thereunder and any order related thereto, shall remain in effect, notwithstanding the expiration provided for in subsection (a), until the Court issues an order with respect to such certification under paragraph (3) at which time the provisions of that paragraph and paragraph (4) shall apply with respect to such certification.

(j)

Judicial Proceedings

(1)

Expedited judicial proceedings

Judicial proceedings under this section shall be conducted as expeditiously as possible.

(2)

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 as necessary for good cause in a manner consistent with national security.

(k)

Maintenance and security of records and proceedings

(1)

Standards

The Foreign Intelligence Surveillance Court shall maintain a record of a proceeding under this section, including petitions, appeals, orders, and statements of reasons for a decision, under security measures adopted by the Chief Justice of the United States, in consultation with the Attorney General and the Director of National Intelligence.

(2)

Filing and review

All petitions under this section shall be filed under seal. In any proceedings under this section, the Court shall, upon request of the Government, review ex parte and in camera any Government submission, or portions of a submission, which may include classified information.

(3)

Retention of records

The Attorney General and the Director of National Intelligence shall retain a directive or an order issued under this section for a period of not less than 10 years from the date on which such directive or such order is issued.

(l)

Assessments and reviews

(1)

Semiannual assessment

Not less frequently than once every 6 months, the Attorney General and Director of National Intelligence shall assess compliance with the targeting and minimization procedures adopted in accordance with subsections (d) and (e) and the guidelines adopted in accordance with subsection (f) and shall submit each assessment to—

(A)

the Foreign Intelligence Surveillance Court; and

(B)

consistent with the Rules of the House of Representatives, the Standing Rules of the Senate, and Senate Resolution 400 of the 94th Congress or any successor Senate resolution—

(i)

the congressional intelligence committees; and

(ii)

the Committees on the Judiciary of the House of Representatives and the Senate.

(2)

Agency assessment

The Inspector General of the Department of Justice and the Inspector General of each element of the intelligence community authorized to acquire foreign intelligence information under subsection (a), with respect to the department or element of such Inspector General—

(A)

are authorized to review compliance with the targeting and minimization procedures adopted in accordance with subsections (d) and (e) and the guidelines adopted in accordance with subsection (f);

(B)

with respect to acquisitions authorized under subsection (a), shall review the number of disseminated intelligence reports containing a reference to a United States-person identity and the number of United States-person identities subsequently disseminated by the element concerned in response to requests for identities that were not referred to by name or title in the original reporting;

(C)

with respect to acquisitions authorized under subsection (a), shall review the number of targets that were later determined to be located in the United States and, to the extent possible, whether communications of such targets were reviewed; and

(D)

shall provide each such review to—

(i)

the Attorney General;

(ii)

the Director of National Intelligence; and

(iii)

consistent with the Rules of the House of Representatives, the Standing Rules of the Senate, and Senate Resolution 400 of the 94th Congress or any successor Senate resolution—

(I)

the congressional intelligence committees; and

(II)

the Committees on the Judiciary of the House of Representatives and the Senate.

(3)

Annual review

(A)

Requirement to conduct

The head of each element of the intelligence community conducting an acquisition authorized under subsection (a) shall conduct an annual review to determine whether there is reason to believe that foreign intelligence information has been or will be obtained from the acquisition. The annual review shall provide, with respect to acquisitions authorized under subsection (a)—

(i)

an accounting of the number of disseminated intelligence reports containing a reference to a United States-person identity;

(ii)

an accounting of the number of United States-person identities subsequently disseminated by that element in response to requests for identities that were not referred to by name or title in the original reporting;

(iii)

the number of targets that were later determined to be located in the United States and, to the extent possible, whether communications of such targets were reviewed; and

(iv)

a description of any procedures developed by the head of such element of the intelligence community and approved by the Director of National Intelligence to assess, in a manner consistent with national security, operational requirements and the privacy interests of United States persons, the extent to which the acquisitions authorized under subsection (a) acquire the communications of United States persons, and the results of any such assessment.

(B)

Use of review

The head of each element of the intelligence community that conducts an annual review under subparagraph (A) shall use each such review to evaluate the adequacy of the minimization procedures utilized by such element and, as appropriate, the application of the minimization procedures to a particular acquisition authorized under subsection (a).

(C)

Provision of review

The head of each element of the intelligence community that conducts an annual review under subparagraph (A) shall provide such review to—

(i)

the Foreign Intelligence Surveillance Court;

(ii)

the Attorney General;

(iii)

the Director of National Intelligence; and

(iv)

consistent with the Rules of the House of Representatives, the Standing Rules of the Senate, and Senate Resolution 400 of the 94th Congress or any successor Senate resolution—

(I)

the congressional intelligence committees; and

(II)

the Committees on the Judiciary of the House of Representatives and the Senate.

703.

Certain acquisitions inside the United States targeting United States persons outside the United States

(a)

Jurisdiction of the Foreign Intelligence Surveillance Court

(1)

In general

The Foreign Intelligence Surveillance Court shall have jurisdiction to review an application and to enter an order approving the targeting of a United States person reasonably believed to be located outside the United States to acquire foreign intelligence information, if the acquisition constitutes electronic surveillance or the acquisition of stored electronic communications or stored electronic data that requires an order under this Act, and such acquisition is conducted within the United States.

(2)

Limitation

If a United States person targeted under this subsection is reasonably believed to be located in the United States during the effective period of an order issued pursuant to subsection (c), an acquisition targeting such United States person under this section shall cease unless the targeted United States person is again reasonably believed to be located outside the United States while an order issued pursuant to subsection (c) is in effect. Nothing in this section shall be construed to limit the authority of the Government to seek an order or authorization under, or otherwise engage in any activity that is authorized under, any other title of this Act.

(b)

Application

(1)

In general

Each application for an order under this section shall be made by a Federal officer in writing upon oath or affirmation to a judge having jurisdiction under subsection (a)(1). Each application shall require the approval of the Attorney General based upon the Attorney General’s finding that it satisfies the criteria and requirements of such application, as set forth in this section, and shall include—

(A)

the identity of the Federal officer making the application;

(B)

the identity, if known, or a description of the United States person who is the target of the acquisition;

(C)

a statement of the facts and circumstances relied upon to justify the applicant’s belief that the United States person who is the target of the acquisition is—

(i)

a person reasonably believed to be located outside the United States; and

(ii)

a foreign power, an agent of a foreign power, or an officer or employee of a foreign power;

(D)

a statement of proposed minimization procedures that meet the definition of minimization procedures under section 101(h) or 301(4), as appropriate;

(E)

a description of the nature of the information sought and the type of communications or activities to be subjected to acquisition;

(F)

a certification made by the Attorney General or an official specified in section 104(a)(6) that—

(i)

the certifying official deems the information sought to be foreign intelligence information;

(ii)

a significant purpose of the acquisition is to obtain foreign intelligence information;

(iii)

such information cannot reasonably be obtained by normal investigative techniques;

(iv)

designates the type of foreign intelligence information being sought according to the categories described in section 101(e); and

(v)

includes a statement of the basis for the certification that—

(I)

the information sought is the type of foreign intelligence information designated; and

(II)

such information cannot reasonably be obtained by normal investigative techniques;

(G)

a summary statement of the means by which the acquisition will be conducted and whether physical entry is required to effect the acquisition;

(H)

the identity of any electronic communication service provider necessary to effect the acquisition, provided that the application is not required to identify the specific facilities, places, premises, or property at which the acquisition authorized under this section will be directed or conducted;

(I)

a statement of the facts concerning any previous applications that have been made to any judge of the Foreign Intelligence Surveillance Court involving the United States person specified in the application and the action taken on each previous application; and

(J)

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.

(2)

Other requirements of the Attorney General

The Attorney General may require any other affidavit or certification from any other officer in connection with the application.

(3)

Other requirements of the judge

The judge may require the applicant to furnish such other information as may be necessary to make the findings required by subsection (c)(1).

(c)

Order

(1)

Findings

Upon an application made pursuant to subsection (b), the Foreign Intelligence Surveillance Court shall enter an ex parte order as requested or as modified by the Court approving the acquisition if the Court finds that—

(A)

the application has been made by a Federal officer and approved by the Attorney General;

(B)

on the basis of the facts submitted by the applicant, for the United States person who is the target of the acquisition, there is probable cause to believe that the target is—

(i)

a person reasonably believed to be located outside the United States; and

(ii)

a foreign power, an agent of a foreign power, or an officer or employee of a foreign power;

(C)

the proposed minimization procedures meet the definition of minimization procedures under section 101(h) or 301(4), as appropriate; and

(D)

the application that has been filed contains all statements and certifications required by subsection (b) and the certification or certifications are not clearly erroneous on the basis of the statement made under subsection (b)(1)(F)(v) and any other information furnished under subsection (b)(3).

(2)

Probable cause

In determining whether or not probable cause exists for purposes of paragraph (1)(B), a judge having jurisdiction under subsection (a)(1) may consider past activities of the target and facts and circumstances relating to current or future activities of the target. No United States person may be considered a foreign power, agent of a foreign power, or officer or employee of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States.

(3)

Review

(A)

Limitation on review

Review by a judge having jurisdiction under subsection (a)(1) shall be limited to that required to make the findings described in paragraph (1).

(B)

Review of probable cause

If the judge determines that the facts submitted under subsection (b) are insufficient to establish probable cause under paragraph (1)(B), the judge shall enter an order so stating and provide a written statement for the record of the reasons for the determination. The Government may appeal an order under this subparagraph pursuant to subsection (f).

(C)

Review of minimization procedures

If the judge determines that the proposed minimization procedures referred to in paragraph (1)(C) do not meet the definition of minimization procedures under section 101(h) or 301(4), as appropriate, the judge shall enter an order so stating and provide a written statement for the record of the reasons for the determination. The Government may appeal an order under this subparagraph pursuant to subsection (f).

(D)

Review of certification

If the judge determines that an application pursuant to subsection (b) does not contain all of the required elements, or that the certification or certifications are clearly erroneous on the basis of the statement made under subsection (b)(1)(F)(v) and any other information furnished under subsection (b)(3), the judge shall enter an order so stating and provide a written statement for the record of the reasons for the determination. The Government may appeal an order under this subparagraph pursuant to subsection (f).

(4)

Specifications

An order approving an acquisition under this subsection shall specify—

(A)

the identity, if known, or a description of the United States person who is the target of the acquisition identified or described in the application pursuant to subsection (b)(1)(B);

(B)

if provided in the application pursuant to subsection (b)(1)(H), the nature and location of each of the facilities or places at which the acquisition will be directed;

(C)

the nature of the information sought to be acquired and the type of communications or activities to be subjected to acquisition;

(D)

a summary of the means by which the acquisition will be conducted and whether physical entry is required to effect the acquisition; and

(E)

the period of time during which the acquisition is approved.

(5)

Directives

An order approving an acquisition under this subsection shall direct—

(A)

that the minimization procedures referred to in paragraph (1)(C), as approved or modified by the Court, be followed;

(B)

if applicable, an electronic communication service provider to provide to the Government forthwith all information, facilities, or assistance necessary to accomplish the acquisition authorized under such order in a manner that will protect the secrecy of the acquisition and produce a minimum of interference with the services that such electronic communication service provider is providing to the target of the acquisition;

(C)

if applicable, an electronic communication service provider to maintain under security procedures approved by the Attorney General any records concerning the acquisition or the aid furnished that such electronic communication service provider wishes to maintain; and

(D)

if applicable, that the Government compensate, at the prevailing rate, such electronic communication service provider for providing such information, facilities, or assistance.

(6)

Duration

An order approved under this subsection shall be effective for a period not to exceed 90 days and such order may be renewed for additional 90-day periods upon submission of renewal applications meeting the requirements of subsection (b).

(7)

Compliance

At or prior to the end of the period of time for which an acquisition is approved by an order or extension under this section, the judge may assess compliance with the minimization procedures referred to in paragraph (1)(C) by reviewing the circumstances under which information concerning United States persons was acquired, retained, or disseminated.

(d)

Emergency authorization

(1)

Authority for emergency authorization

Notwithstanding any other provision of this Act, if the Attorney General reasonably determines that—

(A)

an emergency situation exists with respect to the acquisition of foreign intelligence information for which an order may be obtained under subsection (c) before an order authorizing such acquisition can with due diligence be obtained, and

(B)

the factual basis for issuance of an order under this subsection to approve such acquisition exists,

the Attorney General may authorize such acquisition if a judge having jurisdiction under subsection (a)(1) is informed by the Attorney General, or a designee of the Attorney General, at the time of such authorization that the decision has been made to conduct such acquisition and if an application in accordance with this section is made to a judge of the Foreign Intelligence Surveillance Court as soon as practicable, but not more than 7 days after the Attorney General authorizes such acquisition.

(2)

Minimization procedures

If the Attorney General authorizes an acquisition under paragraph (1), the Attorney General shall require that the minimization procedures referred to in subsection (c)(1)(C) for the issuance of a judicial order be followed.

(3)

Termination of emergency authorization

In the absence of a judicial order approving an acquisition under paragraph (1), such acquisition shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 7 days from the time of authorization by the Attorney General, whichever is earliest.

(4)

Use of information

If an application for approval submitted pursuant to paragraph (1) is denied, or in any other case where the acquisition is terminated and no order is issued approving the acquisition, no information obtained or evidence derived from such acquisition, except under circumstances in which the target of the acquisition is determined not to be a United States person, shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such acquisition shall 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.

(e)

Release from liability

No cause of action shall lie in any court against any electronic communication service provider for providing any information, facilities, or assistance in accordance with an order or request for emergency assistance issued pursuant to subsection (c) or (d), respectively.

(f)

Appeal

(1)

Appeal to the Foreign Intelligence Surveillance Court of Review

The Government may file a petition with the Foreign Intelligence Surveillance Court of Review for review of an order issued pursuant to subsection (c). The Court of Review shall have jurisdiction to consider such petition and shall provide a written statement for the record of the reasons for a decision under this paragraph.

(2)

Certiorari to the Supreme Court

The Government may file a petition for a writ of certiorari for review of a decision of the Court of Review issued under paragraph (1). The record for such review shall be transmitted under seal to the Supreme Court of the United States, which shall have jurisdiction to review such decision.

(g)

Construction

Except as provided in this section, nothing in this Act shall be construed to require an application for a court order for an acquisition that is targeted in accordance with this section at a United States person reasonably believed to be located outside the United States.

704.

Other acquisitions targeting United States persons outside the United States

(a)

Jurisdiction and scope

(1)

Jurisdiction

The Foreign Intelligence Surveillance Court shall have jurisdiction to enter an order pursuant to subsection (c).

(2)

Scope

No element of the intelligence community may intentionally target, for the purpose of acquiring foreign intelligence information, a United States person reasonably believed to be located outside the United States under circumstances in which the targeted United States person has a reasonable expectation of privacy and a warrant would be required if the acquisition were conducted inside the United States for law enforcement purposes, unless a judge of the Foreign Intelligence Surveillance Court has entered an order with respect to such targeted United States person or the Attorney General has authorized an emergency acquisition pursuant to subsection (c) or (d), respectively, or any other provision of this Act.

(3)

Limitations

(A)

Moving or misidentified targets

If a United States person targeted under this subsection is reasonably believed to be located in the United States during the effective period of an order issued pursuant to subsection (c), an acquisition targeting such United States person under this section shall cease unless the targeted United States person is again reasonably believed to be located outside the United States during the effective period of such order.

(B)

Applicability

If an acquisition for foreign intelligence purposes is to be conducted inside the United States and could be authorized under section 703, the acquisition may only be conducted if authorized under section 703 or in accordance with another provision of this Act other than this section.

(C)

Construction

Nothing in this paragraph shall be construed to limit the authority of the Government to seek an order or authorization under, or otherwise engage in any activity that is authorized under, any other title of this Act.

(b)

Application

Each application for an order under this section shall be made by a Federal officer in writing upon oath or affirmation to a judge having jurisdiction under subsection (a)(1). Each application shall require the approval of the Attorney General based upon the Attorney General’s finding that it satisfies the criteria and requirements of such application as set forth in this section and shall include—

(1)

the identity of the Federal officer making the application;

(2)

the identity, if known, or a description of the specific United States person who is the target of the acquisition;

(3)

a statement of the facts and circumstances relied upon to justify the applicant’s belief that the United States person who is the target of the acquisition is—

(A)

a person reasonably believed to be located outside the United States; and

(B)

a foreign power, an agent of a foreign power, or an officer or employee of a foreign power;

(4)

a statement of proposed minimization procedures that meet the definition of minimization procedures under section 101(h) or 301(4), as appropriate;

(5)

a certification made by the Attorney General, an official specified in section 104(a)(6), or the head of an element of the intelligence community that—

(A)

the certifying official deems the information sought to be foreign intelligence information; and

(B)

a significant purpose of the acquisition is to obtain foreign intelligence information;

(6)

a statement of the facts concerning any previous applications that have been made to any judge of the Foreign Intelligence Surveillance Court involving the United States person specified in the application and the action taken on each previous application; and

(7)

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.

(c)

Order

(1)

Findings

Upon an application made pursuant to subsection (b), the Foreign Intelligence Surveillance Court shall enter an ex parte order as requested or as modified by the Court if the Court finds that—

(A)

the application has been made by a Federal officer and approved by the Attorney General;

(B)

on the basis of the facts submitted by the applicant, for the United States person who is the target of the acquisition, there is probable cause to believe that the target is—

(i)

a person reasonably believed to be located outside the United States; and

(ii)

a foreign power, an agent of a foreign power, or an officer or employee of a foreign power;

(C)

the proposed minimization procedures, with respect to their dissemination provisions, meet the definition of minimization procedures under section 101(h) or 301(4), as appropriate; and

(D)

the application that has been filed contains all statements and certifications required by subsection (b) and the certification provided under subsection (b)(5) is not clearly erroneous on the basis of the information furnished under subsection (b).

(2)

Probable cause

In determining whether or not probable cause exists for purposes of paragraph (1)(B), a judge having jurisdiction under subsection (a)(1) may consider past activities of the target and facts and circumstances relating to current or future activities of the target. No United States person may be considered a foreign power, agent of a foreign power, or officer or employee of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States.

(3)

Review

(A)

Limitations on review

Review by a judge having jurisdiction under subsection (a)(1) shall be limited to that required to make the findings described in paragraph (1). The judge shall not have jurisdiction to review the means by which an acquisition under this section may be conducted.

(B)

Review of probable cause

If the judge determines that the facts submitted under subsection (b) are insufficient to establish probable cause to issue an order under this subsection, the judge shall enter an order so stating and provide a written statement for the record of the reasons for such determination. The Government may appeal an order under this subparagraph pursuant to subsection (e).

(C)

Review of minimization procedures

If the judge determines that the minimization procedures applicable to dissemination of information obtained through an acquisition under this subsection do not meet the definition of minimization procedures under section 101(h) or 301(4), as appropriate, the judge shall enter an order so stating and provide a written statement for the record of the reasons for such determination. The Government may appeal an order under this subparagraph pursuant to subsection (e).

(D)

Scope of review of certification

If the judge determines that an application under subsection (b) does not contain all the required elements, or that the certification provided under subsection (b)(5) is clearly erroneous on the basis of the information furnished under subsection (b), the judge shall enter an order so stating and provide a written statement for the record of the reasons for such determination. The Government may appeal an order under this subparagraph pursuant to subsection (e).

(4)

Duration

An order under this paragraph shall be effective for a period not to exceed 90 days and such order may be renewed for additional 90-day periods upon submission of renewal applications meeting the requirements of subsection (b).

(5)

Compliance

At or prior to the end of the period of time for which an order or extension is granted under this section, the judge may assess compliance with the minimization procedures referred to in paragraph (1)(C) by reviewing the circumstances under which information concerning United States persons was disseminated, provided that the judge may not inquire into the circumstances relating to the conduct of the acquisition.

(d)

Emergency authorization

(1)

Authority for emergency authorization

Notwithstanding any other provision of this section, if the Attorney General reasonably determines that—

(A)

an emergency situation exists with respect to the acquisition of foreign intelligence information for which an order may be obtained under subsection (c) before an order under that subsection can, with due diligence, be obtained, and

(B)

the factual basis for the issuance of an order under this section exists,

the Attorney General may authorize the emergency acquisition if a judge having jurisdiction under subsection (a)(1) is informed by the Attorney General or a designee of the Attorney General at the time of such authorization that the decision has been made to conduct such acquisition and if an application in accordance with this section is made to a judge of the Foreign Intelligence Surveillance Court as soon as practicable, but not more than 7 days after the Attorney General authorizes such acquisition.

(2)

Minimization procedures

If the Attorney General authorizes an emergency acquisition under paragraph (1), the Attorney General shall require that the minimization procedures referred to in subsection (c)(1)(C) be followed.

(3)

Termination of emergency authorization

In the absence of an order under subsection (c), an emergency acquisition under paragraph (1) shall terminate when the information sought is obtained, if the application for the order is denied, or after the expiration of 7 days from the time of authorization by the Attorney General, whichever is earliest.

(4)

Use of information

If an application submitted to the Court pursuant to paragraph (1) is denied, or in any other case where the acquisition is terminated and no order with respect to the target of the acquisition is issued under subsection (c), no information obtained or evidence derived from such acquisition, except under circumstances in which the target of the acquisition is determined not to be a United States person, shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such acquisition shall 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.

(e)

Appeal

(1)

Appeal to the court of review

The Government may file a petition with the Foreign Intelligence Surveillance Court of Review for review of an order issued pursuant to subsection (c). The Court of Review shall have jurisdiction to consider such petition and shall provide a written statement for the record of the reasons for a decision under this paragraph.

(2)

Certiorari to the Supreme Court

The Government may file a petition for a writ of certiorari for review of a decision of the Court of Review issued under paragraph (1). The record for such review shall be transmitted under seal to the Supreme Court of the United States, which shall have jurisdiction to review such decision.

705.

Joint applications and concurrent authorizations

(a)

Joint applications and orders

If an acquisition targeting a United States person under section 703 or 704 is proposed to be conducted both inside and outside the United States, a judge having jurisdiction under section 703(a)(1) or 704(a)(1) may issue simultaneously, upon the request of the Government in a joint application complying with the requirements of sections 703(b) and 704(b), orders under sections 703(c) and 704(c), as appropriate.

(b)

Concurrent authorization

If an order authorizing electronic surveillance or physical search has been obtained under section 105 or 304, the Attorney General may authorize, for the effective period of that order, without an order under section 703 or 704, the targeting of that United States person for the purpose of acquiring foreign intelligence information while such person is reasonably believed to be located outside the United States.

706.

Use of information acquired under title VII

(a)

Information acquired under section 702

Information acquired from an acquisition conducted under section 702 shall be deemed to be information acquired from an electronic surveillance pursuant to title I for purposes of section 106, except for the purposes of subsection (j) of such section.

(b)

Information acquired under section 703

Information acquired from an acquisition conducted under section 703 shall be deemed to be information acquired from an electronic surveillance pursuant to title I for purposes of section 106.

707.

Congressional oversight

(a)

Semiannual report

Not less frequently than once every 6 months, the Attorney General shall fully inform, in a manner consistent with national security, the congressional intelligence committees and the Committees on the Judiciary of the Senate and the House of Representatives, consistent with the Rules of the House of Representatives, the Standing Rules of the Senate, and Senate Resolution 400 of the 94th Congress or any successor Senate resolution, concerning the implementation of this title.

(b)

Content

Each report under subsection (a) shall include—

(1)

with respect to section 702—

(A)

any certifications submitted in accordance with section 702(g) during the reporting period;

(B)

with respect to each determination under section 702(c)(2), the reasons for exercising the authority under such section;

(C)

any directives issued under section 702(h) during the reporting period;

(D)

a description of the judicial review during the reporting period of such certifications and targeting and minimization procedures adopted in accordance with subsections (d) and (e) of section 702 and utilized with respect to an acquisition under such section, including a copy of an order or pleading in connection with such review that contains a significant legal interpretation of the provisions of section 702;

(E)

any actions taken to challenge or enforce a directive under paragraph (4) or (5) of section 702(h);

(F)

any compliance reviews conducted by the Attorney General or the Director of National Intelligence of acquisitions authorized under section 702(a);

(G)

a description of any incidents of noncompliance—

(i)

with a directive issued by the Attorney General and the Director of National Intelligence under section 702(h), including incidents of noncompliance by a specified person to whom the Attorney General and Director of National Intelligence issued a directive under section 702(h); and

(ii)

by an element of the intelligence community with procedures and guidelines adopted in accordance with subsections (d), (e), and (f) of section 702; and

(H)

any procedures implementing section 702;

(2)

with respect to section 703—

(A)

the total number of applications made for orders under section 703(b);

(B)

the total number of such orders—

(i)

granted;

(ii)

modified; and

(iii)

denied; and

(C)

the total number of emergency acquisitions authorized by the Attorney General under section 703(d) and the total number of subsequent orders approving or denying such acquisitions; and

(3)

with respect to section 704—

(A)

the total number of applications made for orders under section 704(b);

(B)

the total number of such orders—

(i)

granted;

(ii)

modified; and

(iii)

denied; and

(C)

the total number of emergency acquisitions authorized by the Attorney General under section 704(d) and the total number of subsequent orders approving or denying such applications.

708.

Savings provision

Nothing in this title shall be construed to limit the authority of the Government to seek an order or authorization under, or otherwise engage in any activity that is authorized under, any other title of this Act.

.

(b)

Table of contents

The table of contents in the first section of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended—

(1)

by striking the item relating to title VII;

(2)

by striking the item relating to section 701; and

(3)

by adding at the end the following:

TITLE VII—Additional procedures regarding certain persons outside the United States

Sec. 701. Definitions.

Sec. 702. Procedures for targeting certain persons outside the United States other than United States persons.

Sec. 703. Certain acquisitions inside the United States targeting United States persons outside the United States.

Sec. 704. Other acquisitions targeting United States persons outside the United States.

Sec. 705. Joint applications and concurrent authorizations.

Sec. 706. Use of information acquired under title VII.

Sec. 707. Congressional oversight.

Sec. 708. Savings provision.

.

(c)

Technical and conforming amendments

(1)

Title 18, United States Code

Section 2511(2)(a)(ii)(A) of title 18, United States Code, is amended by inserting or a court order pursuant to section 704 of the Foreign Intelligence Surveillance Act of 1978 after assistance.

(2)

Foreign Intelligence Surveillance Act of 1978

Section 601(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1871(a)(1)) is amended—

(A)

in subparagraph (C), by striking and; and

(B)

by adding at the end the following new subparagraphs:

(E)

acquisitions under section 703; and

(F)

acquisitions under section 704;

.

102.

Statement of exclusive means by which electronic surveillance and interception of certain communications may be conducted

(a)

Statement of exclusive means

Title I of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended by adding at the end the following new section:

112.

Statement of exclusive means by which electronic surveillance and interception of certain communications may be conducted

(a)

Except as provided in subsection (b), the procedures of chapters 119, 121, and 206 of title 18, United States Code, and this Act shall be the exclusive means by which electronic surveillance and the interception of domestic 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).

.

(b)

Offense

Section 109(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1809(a)) is amended by striking authorized by statute each place it appears 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.; and

(c)

Conforming amendments

(1)

Title 18, United States Code

Section 2511(2)(a) of title 18, United States Code, is amended by adding at the end the following:

(iii)

If a certification under subparagraph (ii)(B) for assistance to obtain foreign intelligence information is based on statutory authority, the certification shall identify the specific statutory provision and shall certify that the statutory requirements have been met.

; and

(2)

Table of contents

The table of contents in the first section of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended by inserting after the item relating to section 111, the following new item:

Sec. 112. Statement of exclusive means by which electronic surveillance and interception of certain communications may be conducted.

.

103.

Submittal to Congress of certain court orders under the Foreign Intelligence Surveillance Act of 1978

(a)

Inclusion of certain orders in semiannual reports of Attorney General

Subsection (a)(5) of section 601 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1871) is amended by striking (not including orders) and inserting , orders,.

(b)

Reports by Attorney General on certain other orders

Such section 601 is further amended by adding at the end the following:

(c)

Submissions to Congress

The Attorney General shall submit to the committees of Congress referred to in subsection (a)—

(1)

a copy of any decision, order, or opinion issued by the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review that includes significant construction or interpretation of any provision of this Act, and any pleadings, applications, or memoranda of law associated with such decision, order, or opinion, not later than 45 days after such decision, order, or opinion is issued; and

(2)

a copy of each such decision, order, or opinion, and any pleadings, applications, or memoranda of law associated with such decision, order, or opinion, that was issued during the 5-year period ending on the date of the enactment of the FISA Amendments Act of 2008 and not previously submitted in a report under subsection (a).

(d)

Protection of national security

The Attorney General, in consultation with the Director of National Intelligence, may authorize redactions of materials described in subsection (c) that are provided to the committees of Congress referred to in subsection (a), if such redactions are necessary to protect the national security of the United States and are limited to sensitive sources and methods information or the identities of targets.

.

(c)

Definitions

Such section 601, as amended by subsections (a) and (b), is further amended by adding at the end the following:

(e)

Definitions

In this section:

(1)

Foreign intelligence surveillance court

The term Foreign Intelligence Surveillance Court means the court established under section 103(a).

(2)

Foreign intelligence surveillance court of review

The term Foreign Intelligence Surveillance Court of Review means the court established under section 103(b).

.

104.

Applications for court orders

Section 104 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1804) is amended—

(1)

in subsection (a)—

(A)

by striking paragraphs (2) and (11);

(B)

by redesignating paragraphs (3) through (10) as paragraphs (2) through (9), respectively;

(C)

in paragraph (5), as redesignated by subparagraph (B) of this paragraph, by striking detailed;

(D)

in paragraph (6), as redesignated by subparagraph (B) of this paragraph, in the matter preceding subparagraph (A)—

(i)

by striking Affairs or and inserting Affairs,; and

(ii)

by striking Senate— and inserting Senate, or the Deputy Director of the Federal Bureau of Investigation, if designated by the President as a certifying official—;

(E)

in paragraph (7), as redesignated by subparagraph (B) of this paragraph, by striking statement of and inserting summary statement of;

(F)

in paragraph (8), as redesignated by subparagraph (B) of this paragraph, by adding and at the end; and

(G)

in paragraph (9), as redesignated by subparagraph (B) of this paragraph, by striking ; and and inserting a period;

(2)

by striking subsection (b);

(3)

by redesignating subsections (c) through (e) as subsections (b) through (d), respectively; and

(4)

in paragraph (1)(A) of subsection (d), as redesignated by paragraph (3) of this subsection, by striking or the Director of National Intelligence and inserting the Director of National Intelligence, or the Director of the Central Intelligence Agency.

105.

Issuance of an order

(a)

In general

Section 105 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1805) is amended—

(1)

in subsection (a)—

(A)

by striking paragraph (1); and

(B)

by redesignating paragraphs (2) through (5) as paragraphs (1) through (4), respectively;

(2)

in subsection (b), by striking (a)(3) and inserting (a)(2);

(3)

in subsection (c)(1)—

(A)

in subparagraph (D), by adding and at the end;

(B)

in subparagraph (E), by striking ; and and inserting a period; and

(C)

by striking subparagraph (F);

(4)

by striking subsection (d);

(5)

by redesignating subsections (e) through (i) as subsections (d) through (h), respectively;

(6)

by amending subsection (e), as redesignated by paragraph (5) of this section, to read as follows:

(e)
(1)

Notwithstanding any other provision of this title, the Attorney General may authorize the emergency employment of electronic surveillance if the Attorney General—

(A)

reasonably determines that an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained;

(B)

reasonably determines that the factual basis for the issuance of an order under this title to approve such electronic surveillance exists;

(C)

informs, either personally or through a designee, a judge having jurisdiction under section 103 at the time of such authorization that the decision has been made to employ emergency electronic surveillance; and

(D)

makes an application in accordance with this title to a judge having jurisdiction under section 103 as soon as practicable, but not later than 7 days after the Attorney General authorizes such surveillance.

(2)

If the Attorney General authorizes the emergency employment of electronic surveillance under paragraph (1), the Attorney General shall require that the minimization procedures required by this title for the issuance of a judicial order be followed.

(3)

In the absence of a judicial order approving such electronic surveillance, the surveillance shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 7 days from the time of authorization by the Attorney General, whichever is earliest.

(4)

A denial of the application made under this subsection may be reviewed as provided in section 103.

(5)

In the event that such application for approval is denied, or in any other case where the electronic surveillance is terminated and no order is issued approving the surveillance, no information obtained or evidence derived from such surveillance shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such surveillance shall 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.

(6)

The Attorney General shall assess compliance with the requirements of paragraph (5).

; and

(7)

by adding at the end the following:

(i)

In any case in which the Government makes an application to a judge under this title to conduct electronic surveillance involving communications and the judge grants such application, upon the request of the applicant, the judge shall also authorize the installation and use of pen registers and trap and trace devices, and direct the disclosure of the information set forth in section 402(d)(2).

.

(b)

Conforming amendment

Section 108(a)(2)(C) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1808(a)(2)(C)) is amended by striking 105(f) and inserting 105(e);

106.

Use of information

Subsection (i) of section 106 of the Foreign Intelligence Surveillance Act of 1978 (8 U.S.C. 1806) is amended by striking radio communication and inserting communication.

107.

Amendments for physical searches

(a)

Applications

Section 303 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1823) is amended—

(1)

in subsection (a)—

(A)

by striking paragraph (2);

(B)

by redesignating paragraphs (3) through (9) as paragraphs (2) through (8), respectively;

(C)

in paragraph (2), as redesignated by subparagraph (B) of this paragraph, by striking detailed;

(D)

in paragraph (3)(C), as redesignated by subparagraph (B) of this paragraph, by inserting or is about to be before owned; and

(E)

in paragraph (6), as redesignated by subparagraph (B) of this paragraph, in the matter preceding subparagraph (A)—

(i)

by striking Affairs or and inserting Affairs,; and

(ii)

by striking Senate— and inserting Senate, or the Deputy Director of the Federal Bureau of Investigation, if designated by the President as a certifying official—; and

(2)

in subsection (d)(1)(A), by striking or the Director of National Intelligence and inserting the Director of National Intelligence, or the Director of the Central Intelligence Agency.

(b)

Orders

Section 304 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1824) is amended—

(1)

in subsection (a)—

(A)

by striking paragraph (1);

(B)

by redesignating paragraphs (2) through (5) as paragraphs (1) through (4), respectively; and

(C)

in paragraph (2)(B), as redesignated by subparagraph (B) of this paragraph, by inserting or is about to be before owned; and

(2)

by amending subsection (e) to read as follows:

(e)
(1)

Notwithstanding any other provision of this title, the Attorney General may authorize the emergency employment of a physical search if the Attorney General—

(A)

reasonably determines that an emergency situation exists with respect to the employment of a physical search to obtain foreign intelligence information before an order authorizing such physical search can with due diligence be obtained;

(B)

reasonably determines that the factual basis for issuance of an order under this title to approve such physical search exists;

(C)

informs, either personally or through a designee, a judge of the Foreign Intelligence Surveillance Court at the time of such authorization that the decision has been made to employ an emergency physical search; and

(D)

makes an application in accordance with this title to a judge of the Foreign Intelligence Surveillance Court as soon as practicable, but not more than 7 days after the Attorney General authorizes such physical search.

(2)

If the Attorney General authorizes the emergency employment of a physical search under paragraph (1), the Attorney General shall require that the minimization procedures required by this title for the issuance of a judicial order be followed.

(3)

In the absence of a judicial order approving such physical search, the physical search shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 7 days from the time of authorization by the Attorney General, whichever is earliest.

(4)

A denial of the application made under this subsection may be reviewed as provided in section 103.

(5)

In the event that such application for approval is denied, or in any other case where the physical search is terminated and no order is issued approving the physical search, no information obtained or evidence derived from such physical search shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such physical search shall 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.

(6)

The Attorney General shall assess compliance with the requirements of paragraph (5).

.

(c)

Conforming amendments

The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended—

(1)

in section 304(a)(4), as redesignated by subsection (b) of this section, by striking 303(a)(7)(E) and inserting 303(a)(6)(E); and

(2)

in section 305(k)(2), by striking 303(a)(7) and inserting 303(a)(6).

108.

Amendments for emergency pen registers and trap and trace devices

Section 403 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1843) is amended—

(1)

in subsection (a)(2), by striking 48 hours and inserting 7 days; and

(2)

in subsection (c)(1)(C), by striking 48 hours and inserting 7 days.

109.

Foreign Intelligence Surveillance Court

(a)

Designation of judges

Subsection (a) of section 103 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803) is amended by inserting at least before seven of the United States judicial circuits.

(b)

En banc authority

(1)

In general

Subsection (a) of section 103 of the Foreign Intelligence Surveillance Act of 1978, as amended by subsection (a) of this section, is further amended—

(A)

by inserting (1) after (a); and

(B)

by adding at the end the following new paragraph:

(2)
(A)

The court established under this subsection may, on its own initiative, or upon the request of the Government in any proceeding or a party under section 501(f) or paragraph (4) or (5) of section 702(h), hold a hearing or rehearing, en banc, when ordered by a majority of the judges that constitute such court upon a determination that—

(i)

en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or

(ii)

the proceeding involves a question of exceptional importance.

(B)

Any authority granted by this Act to a judge of the court established under this subsection may be exercised by the court en banc. When exercising such authority, the court en banc shall comply with any requirements of this Act on the exercise of such authority.

(C)

For purposes of this paragraph, the court en banc shall consist of all judges who constitute the court established under this subsection.

.

(2)

Conforming amendments

The Foreign Intelligence Surveillance Act of 1978 is further amended—

(A)

in subsection (a) of section 103, as amended by this subsection, by inserting (except when sitting en banc under paragraph (2)) after no judge designated under this subsection; and

(B)

in section 302(c) (50 U.S.C. 1822(c)), by inserting (except when sitting en banc) after except that no judge.

(c)

Stay or modification during an appeal

Section 103 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803) is amended—

(1)

by redesignating subsection (f) as subsection (g); and

(2)

by inserting after subsection (e) the following new subsection:

(f)
(1)

A judge of the court established under subsection (a), the court established under subsection (b) or a judge of that court, or the Supreme Court of the United States or a justice of that court, may, in accordance with the rules of their respective courts, enter a stay of an order or an order modifying an order of the court established under subsection (a) or the court established under subsection (b) entered under any title of this Act, while the court established under subsection (a) conducts a rehearing, while an appeal is pending to the court established under subsection (b), or while a petition of certiorari is pending in the Supreme Court of the United States, or during the pendency of any review by that court.

(2)

The authority described in paragraph (1) shall apply to an order entered under any provision of this Act.

.

(d)

Authority of Foreign Intelligence Surveillance Court

Section 103 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803), as amended by this Act, is amended by adding at the end the following:

(i)

Nothing in this Act shall be construed to reduce or contravene the inherent authority of the court established under subsection (a) to determine or enforce compliance with an order or a rule of such court or with a procedure approved by such court.

.

110.

Weapons of mass destruction

(a)

Definitions

(1)

Foreign power

Subsection (a) of section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(a)) is amended—

(A)

in paragraph (5), by striking persons; or and inserting persons;;

(B)

in paragraph (6) by striking the period and inserting ; or; and

(C)

by adding at the end the following new paragraph:

(7)

an entity not substantially composed of United States persons that is engaged in the international proliferation of weapons of mass destruction.

.

(2)

Agent of a foreign power

Subsection (b)(1) of such section 101 is amended—

(A)

in subparagraph (B), by striking or at the end;

(B)

in subparagraph (C), by striking or at the end; and

(C)

by adding at the end the following new subparagraphs:

(D)

engages in the international proliferation of weapons of mass destruction, or activities in preparation therefor; or

(E)

engages in the international proliferation of weapons of mass destruction, or activities in preparation therefor for or on behalf of a foreign power; or

.

(3)

Foreign intelligence information

Subsection (e)(1)(B) of such section 101 is amended by striking sabotage or international terrorism and inserting sabotage, international terrorism, or the international proliferation of weapons of mass destruction.

(4)

Weapon of mass destruction

Such section 101 is amended by adding at the end the following new subsection:

(p)

Weapon of mass destruction means—

(1)

any explosive, incendiary, or poison gas device that is designed, intended, or has the capability to cause a mass casualty incident;

(2)

any weapon that is designed, intended, or has the capability to cause death or serious bodily injury to a significant number of persons through the release, dissemination, or impact of toxic or poisonous chemicals or their precursors;

(3)

any weapon involving a biological agent, toxin, or vector (as such terms are defined in section 178 of title 18, United States Code) that is designed, intended, or has the capability to cause death, illness, or serious bodily injury to a significant number of persons; or

(4)

any weapon that is designed, intended, or has the capability to release radiation or radioactivity causing death, illness, or serious bodily injury to a significant number of persons.

.

(b)

Use of information

(1)

In general

Section 106(k)(1)(B) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1806(k)(1)(B)) is amended by striking sabotage or international terrorism and inserting sabotage, international terrorism, or the international proliferation of weapons of mass destruction.

(2)

Physical searches

Section 305(k)(1)(B) of such Act (50 U.S.C. 1825(k)(1)(B)) is amended by striking sabotage or international terrorism and inserting sabotage, international terrorism, or the international proliferation of weapons of mass destruction.

(c)

Technical and conforming amendments

The Foreign Intelligence Surveillance Act of 1978 is further amended—

(1)

in paragraph (2) of section 105(d) (50 U.S.C. 1805(d)), as redesignated by section 105(a)(5) of this Act, by striking section 101(a) (5) or (6) and inserting paragraph (5), (6), or (7) of section 101(a);

(2)

in section 301(1) (50 U.S.C. 1821(1)), by inserting “weapon of mass destruction,” after person,; and

(3)

in section 304(d)(2) (50 U.S.C. 1824(d)(2)), by striking section 101(a) (5) or (6) and inserting paragraph (5), (6), or (7) of section 101(a).

II

Protections for electronic communication service providers

201.

Procedures for implementing statutory defenses under the Foreign Intelligence Surveillance Act of 1978

The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), as amended by section 101, is further amended by adding at the end the following new title:

VIII

Protection of persons assisting the Government

801.

Definitions

In this title:

(1)

Assistance

The term assistance means the provision of, or the provision of access to, information (including communication contents, communications records, or other information relating to a customer or communication), facilities, or another form of assistance.

(2)

Civil action

The term civil action includes a covered civil action.

(3)

Congressional intelligence committees

The term congressional intelligence committees means—

(A)

the Select Committee on Intelligence of the Senate; and

(B)

the Permanent Select Committee on Intelligence of the House of Representatives.

(4)

Contents

The term contents has the meaning given that term in section 101(n).

(5)

Covered civil action

The term covered civil action means a civil action filed in a Federal or State court that—

(A)

alleges that an electronic communication service provider furnished assistance to an element of the intelligence community; and

(B)

seeks monetary or other relief from the electronic communication service provider related to the provision of such assistance.

(6)

Electronic communication service provider

The term electronic communication service provider means—

(A)

a telecommunications carrier, as that term is defined in section 3 of the Communications Act of 1934 (47 U.S.C. 153);

(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

(F)

an officer, employee, or agent of an entity described in subparagraph (A), (B), (C), (D), or (E).

(7)

Intelligence community

The term intelligence community has the meaning given the term in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)).

(8)

Person

The term person means—

(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 added by section 2 of the Protect America Act of 2007 (Public Law 110–55), or 702(h).

(9)

State

The term State means any State, political subdivision of a State, the Commonwealth of Puerto Rico, the District of Columbia, and any territory or possession of the United States, and includes any officer, public utility commission, or other body authorized to regulate an electronic communication service provider.

802.

Procedures for implementing statutory defenses

(a)

Requirement for certification

Notwithstanding any other provision of law, a civil action may not lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be promptly dismissed, if the Attorney General certifies to the district court of the United States in which such action is pending that—

(1)

any assistance by that person was provided pursuant to an order of the court established under section 103(a) directing such assistance;

(2)

any assistance by that person was provided pursuant to a certification in writing under section 2511(2)(a)(ii)(B) or 2709(b) of title 18, United States Code;

(3)

any assistance by that person was provided pursuant to a directive under section 102(a)(4), 105B(e), as added by section 2 of the Protect America Act of 2007 (Public Law 110–55), or 702(h) directing such assistance;

(4)

in the case of a covered civil action, the assistance alleged to have been provided by the electronic communication service provider was—

(A)

in connection with an intelligence activity involving communications that was—

(i)

authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007; and

(ii)

designed to detect or prevent a terrorist attack, or activities in preparation for a terrorist attack, against the United States; and

(B)

the subject of a written request or directive, or a series of written requests or directives, from the Attorney General or the head of an element of the intelligence community (or the deputy of such person) to the electronic communication service provider indicating that the activity was—

(i)

authorized by the President; and

(ii)

determined to be lawful; or

(5)

the person did not provide the alleged assistance.

(b)

Judicial review

(1)

Review of certifications

A certification under subsection (a) shall be given effect unless the court finds that such certification is not supported by substantial evidence provided to the court pursuant to this section.

(2)

Supplemental materials

In its review of a certification under subsection (a), the court may examine the court order, certification, written request, or directive described in subsection (a) and any relevant court order, certification, written request, or directive submitted pursuant to subsection (d).

(c)

Limitations on disclosure

If the Attorney General files a declaration under section 1746 of title 28, United States Code, that disclosure of a certification made pursuant to subsection (a) or the supplemental materials provided pursuant to subsection (b) or (d) would harm the national security of the United States, the court shall—

(1)

review such certification and the supplemental materials in camera and ex parte; and

(2)

limit any public disclosure concerning such certification and the supplemental materials, including any public order following such in camera and ex parte review, to a statement as to whether the case is dismissed and a description of the legal standards that govern the order, without disclosing the paragraph of subsection (a) that is the basis for the certification.

(d)

Role of the parties

Any plaintiff or defendant in a civil action may submit any relevant court order, certification, written request, or directive to the district court referred to in subsection (a) for review and shall be permitted to participate in the briefing or argument of any legal issue in a judicial proceeding conducted pursuant to this section, but only to the extent that such participation does not require the disclosure of classified information to such party. To the extent that classified information is relevant to the proceeding or would be revealed in the determination of an issue, the court shall review such information in camera and ex parte, and shall issue any part of the court’s written order that would reveal classified information in camera and ex parte and maintain such part under seal.

(e)

Nondelegation

The authority and duties of the Attorney General under this section shall be performed by the Attorney General (or Acting Attorney General) or the Deputy Attorney General.

(f)

Appeal

The courts of appeals shall have jurisdiction of appeals from interlocutory orders of the district courts of the United States granting or denying a motion to dismiss or for summary judgment under this section.

(g)

Removal

A civil action against a person for providing assistance to an element of the intelligence 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 section 1441 of title 28, United States Code.

(h)

Relationship to other laws

Nothing in this section shall be construed to limit any otherwise available immunity, privilege, or defense under any other provision of law.

(i)

Applicability

This section shall apply to a civil action pending on or filed after the date of the enactment of the FISA Amendments Act of 2008.

803.

Preemption

(a)

In general

No State shall have authority to—

(1)

conduct an investigation into an electronic communication service provider’s alleged assistance to an element of the intelligence community;

(2)

require through regulation or any other means the disclosure of information about an electronic communication service provider’s alleged assistance to an element of the intelligence community;

(3)

impose any administrative sanction on an electronic communication service provider for assistance to an element of the intelligence community; or

(4)

commence or maintain a civil action or other proceeding to enforce a requirement that an electronic communication service provider disclose information concerning alleged assistance to an element of the intelligence community.

(b)

Suits by the United States

The United States may bring suit to enforce the provisions of this section.

(c)

Jurisdiction

The district courts of the United States shall have jurisdiction over any civil action brought by the United States to enforce the provisions of this section.

(d)

Application

This section shall apply to any investigation, action, or proceeding that is pending on or commenced after the date of the enactment of the FISA Amendments Act of 2008.

804.

Reporting

(a)

Semiannual report

Not less frequently than once every 6 months, the Attorney General shall, in a manner consistent with national security, the Rules of the House of Representatives, the Standing Rules of the Senate, and Senate Resolution 400 of the 94th Congress or any successor Senate resolution, fully inform the congressional intelligence committees, the Committee on the Judiciary of the Senate, and the Committee on the Judiciary of the House of Representatives concerning the implementation of this title.

(b)

Content

Each report made under subsection (a) shall include—

(1)

any certifications made under section 802;

(2)

a description of the judicial review of the certifications made under section 802; and

(3)

any actions taken to enforce the provisions of section 803.

.

202.

Technical amendments

The table of contents in the first section of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), as amended by section 101(b), is further amended by adding at the end the following:

Title VIII—Protection of persons assisting the Government

Sec. 801. Definitions.

Sec. 802. Procedures for implementing statutory defenses.

Sec. 803. Preemption.

Sec. 804. Reporting.

.

III

Review of previous actions

301.

Review of previous actions

(a)

Definitions

In this section:

(1)

Appropriate committees of congress

The term appropriate committees of Congress means—

(A)

the Select Committee on Intelligence and the Committee on the Judiciary of the Senate; and

(B)

the Permanent Select Committee on Intelligence and the Committee on the Judiciary of the House of Representatives.

(2)

Foreign intelligence surveillance court

The term Foreign Intelligence Surveillance Court means the court established under section 103(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a)).

(3)

President’s surveillance program and program

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 by the President in a radio address on December 17, 2005 (commonly known as the Terrorist Surveillance Program).

(b)

Reviews

(1)

Requirement to conduct

The Inspectors General of the Department of Justice, the Office of the Director of National Intelligence, the National Security Agency, the Department of Defense, and any other element of the intelligence community that participated in the President’s Surveillance Program, shall complete a comprehensive review of, with respect to the oversight authority and responsibility of each such Inspector General—

(A)

all of the facts necessary to describe the establishment, implementation, product, and use of the product of the Program;

(B)

access to legal reviews of the Program and access to information about the Program;

(C)

communications with, and participation of, individuals and entities in the private sector related to the Program;

(D)

interaction with the Foreign Intelligence Surveillance Court and transition to court orders related to the Program; and

(E)

any other matters identified by any such Inspector General that would enable that Inspector General to complete a review of the Program, with respect to such Department or element.

(2)

Cooperation and coordination

(A)

Cooperation

Each Inspector General required to conduct a review under paragraph (1) shall—

(i)

work in conjunction, to the extent practicable, with any other Inspector General required to conduct such a review; and

(ii)

utilize, to the extent practicable, and not unnecessarily duplicate or delay, such reviews or audits that have been completed or are being undertaken by any such Inspector General or by any other office of the Executive Branch related to the Program.

(B)

Integration of other reviews

The Counsel of the Office of Professional Responsibility of the Department of Justice shall provide the report of any investigation conducted by such Office on matters relating to the Program, including any investigation of the process through which legal reviews of the Program were conducted and the substance of such reviews, to the Inspector General of the Department of Justice, who shall integrate the factual findings and conclusions of such investigation into its review.

(C)

Coordination

The Inspectors General shall designate one of the Inspectors General required to conduct a review under paragraph (1) that is appointed by the President, by and with the advice and consent of the Senate, to coordinate the conduct of the reviews and the preparation of the reports.

(c)

Reports

(1)

Preliminary reports

Not later than 60 days after the date of the enactment of this Act, the Inspectors General of the Department of Justice, the Office of the Director of National Intelligence, the National Security Agency, the Department of Defense, and any other Inspector General required to conduct a review under subsection (b)(1), shall submit to the appropriate committees of Congress an interim report that describes the planned scope of such review.

(2)

Final report

Not later than 1 year after the date of the enactment of this Act, the Inspectors General of the Department of Justice, the Office of the Director of National Intelligence, the National Security Agency, the Department of Defense, and any other Inspector General required to conduct a review under subsection (b)(1), shall submit to the appropriate committees of Congress, in a manner consistent with national security, a comprehensive report on such reviews that includes any recommendations of any such Inspectors General within the oversight authority and responsibility of any such Inspector General with respect to the reviews.

(3)

Form

A report under this subsection shall be submitted in unclassified form, but may include a classified annex. The unclassified report shall not disclose the name or identity of any individual or entity of the private sector that participated in the Program or with whom there was communication about the Program, to the extent that information is classified.

(d)

Resources

(1)

Expedited security clearance

The Director of National Intelligence shall ensure that the process for the investigation and adjudication of an application by an Inspector General or any appropriate staff of an Inspector General for a security clearance necessary for the conduct of the review under subsection (b)(1) is carried out as expeditiously as possible.

(2)

Additional personnel for the inspectors general

An Inspector General required to conduct a review under subsection (b)(1) and submit a report under subsection (c) is authorized to hire such additional personnel as may be necessary to carry out such review and prepare such report in a prompt and timely manner. Personnel authorized to be hired under this paragraph—

(A)

shall perform such duties relating to such a review as the relevant Inspector General shall direct; and

(B)

are in addition to any other personnel authorized by law.

(3)

Transfer of personnel

The Attorney General, the Secretary of Defense, the Director of National Intelligence, the Director of the National Security Agency, or the head of any other element of the intelligence community may transfer personnel to the relevant Office of the Inspector General required to conduct a review under subsection (b)(1) and submit a report under subsection (c) and, in addition to any other personnel authorized by law, are authorized to fill any vacancy caused by such a transfer. Personnel transferred under this paragraph shall perform such duties relating to such review as the relevant Inspector General shall direct.

IV

Other provisions

401.

Severability

If any provision of this Act, any amendment made by this Act, or the application thereof to any person or circumstances is held invalid, the validity of the remainder of the Act, of any such amendments, and of the application of such provisions to other persons and circumstances shall not be affected thereby.

402.

Effective date

Except as provided in section 404, the amendments made by this Act shall take effect on the date of the enactment of this Act.

403.

Repeals

(a)

Repeal of Protect America Act of 2007 provisions

(1)

Amendments to FISA

(A)

In general

Except as provided in section 404, sections 105A, 105B, and 105C of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1805a, 1805b, and 1805c) are repealed.

(B)

Technical and conforming amendments

(i)

Table of contents

The table of contents in the first section of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended by striking the items relating to sections 105A, 105B, and 105C.

(ii)

Conforming amendments

Except as provided in section 404, section 103(e) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(e)) is amended—

(I)

in paragraph (1), by striking 105B(h) or 501(f)(1) and inserting 501(f)(1) or 702(h)(4); and

(II)

in paragraph (2), by striking 105B(h) or 501(f)(1) and inserting “501(f)(1) or 702(h)(4)”.

(2)

Reporting requirements

Except as provided in section 404, section 4 of the Protect America Act of 2007 (Public Law 110–55; 121 Stat. 555) is repealed.

(3)

Transition procedures

Except as provided in section 404, subsection (b) of section 6 of the Protect America Act of 2007 (Public Law 110–55; 121 Stat. 556) is repealed.

(b)

FISA Amendments Act of 2008

(1)

In general

Except as provided in section 404, effective December 31, 2012, title VII of the Foreign Intelligence Surveillance Act of 1978, as amended by section 101(a), is repealed.

(2)

Technical and conforming amendments

Effective December 31, 2012—

(A)

the table of contents in the first section of such Act (50 U.S.C. 1801 et seq.) is amended by striking the items related to title VII;

(B)

except as provided in section 404, section 601(a)(1) of such Act (50 U.S.C. 1871(a)(1)) is amended to read as such section read on the day before the date of the enactment of this Act; and

(C)

except as provided in section 404, section 2511(2)(a)(ii)(A) of title 18, United States Code, is amended by striking or a court order pursuant to section 704 of the Foreign Intelligence Surveillance Act of 1978.

404.

Transition procedures

(a)

Transition procedures for Protect America Act of 2007 provisions

(1)

Continued effect of orders, authorizations, directives

Except as provided in paragraph (7), notwithstanding any other provision of law, any order, authorization, or directive issued or made pursuant to section 105B of the Foreign Intelligence Surveillance Act of 1978, as added by section 2 of the Protect America Act of 2007 (Public Law 110–55; 121 Stat. 552), shall continue in effect until the expiration of such order, authorization, or directive.

(2)

Applicability of Protect America Act of 2007 to continued orders, authorizations, directives

Notwithstanding any other provision of this Act, any amendment made by this Act, or the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.)—

(A)

subject to paragraph (3), section 105A of such Act, as added by section 2 of the Protect America Act of 2007 (Public Law 110–55; 121 Stat. 552), shall continue to apply to any acquisition conducted pursuant to an order, authorization, or directive referred to in paragraph (1); and

(B)

sections 105B and 105C of the Foreign Intelligence Surveillance Act of 1978, as added by sections 2 and 3, respectively, of the Protect America Act of 2007, shall continue to apply with respect to an order, authorization, or directive referred to in paragraph (1) until the later of—

(i)

the expiration of such order, authorization, or directive; or

(ii)

the date on which final judgment is entered for any petition or other litigation relating to such order, authorization, or directive.

(3)

Use of information

Information acquired from an acquisition conducted pursuant to an order, authorization, or directive referred to in paragraph (1) shall be deemed to be information acquired from an electronic surveillance pursuant to title I of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) for purposes of section 106 of such Act (50 U.S.C. 1806), except for purposes of subsection (j) of such section.

(4)

Protection from liability

Subsection (l) of section 105B of the Foreign Intelligence Surveillance Act of 1978, as added by section 2 of the Protect America Act of 2007, shall continue to apply with respect to any directives issued pursuant to such section 105B.

(5)

Jurisdiction of Foreign Intelligence Surveillance Court

Notwithstanding any other provision of this Act or of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), section 103(e) of the Foreign Intelligence Surveillance Act (50 U.S.C. 1803(e)), as amended by section 5(a) of the Protect America Act of 2007 (Public Law 110–55; 121 Stat. 556), shall continue to apply with respect to a directive issued pursuant to section 105B of the Foreign Intelligence Surveillance Act of 1978, as added by section 2 of the Protect America Act of 2007, until the later of—

(A)

the expiration of all orders, authorizations, or directives referred to in paragraph (1); or

(B)

the date on which final judgment is entered for any petition or other litigation relating to such order, authorization, or directive.

(6)

Reporting requirements

(A)

Continued applicability

Notwithstanding any other provision of this Act, any amendment made by this Act, the Protect America Act of 2007 (Public Law 110–55), or the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), section 4 of the Protect America Act of 2007 shall continue to apply until the date that the certification described in subparagraph (B) is submitted.

(B)

Certification

The certification described in this subparagraph is a certification—

(i)

made by the Attorney General;

(ii)

submitted as part of a semi-annual report required by section 4 of the Protect America Act of 2007;

(iii)

that states that there will be no further acquisitions carried out under section 105B of the Foreign Intelligence Surveillance Act of 1978, as added by section 2 of the Protect America Act of 2007, after the date of such certification; and

(iv)

that states that the information required to be included under such section 4 relating to any acquisition conducted under such section 105B has been included in a semi-annual report required by such section 4.

(7)

Replacement of orders, authorizations, and directives

(A)

In general

If the Attorney General and the Director of National Intelligence seek to replace an authorization issued pursuant to section 105B of the Foreign Intelligence Surveillance Act of 1978, as added by section 2 of the Protect America Act of 2007 (Public Law 110–55), with an authorization under section 702 of the Foreign Intelligence Surveillance Act of 1978 (as added by section 101(a) of this Act), the Attorney General and the Director of National Intelligence shall, to the extent practicable, submit to the Foreign Intelligence Surveillance Court (as such term is defined in section 701(b)(2) of such Act (as so added)) a certification prepared in accordance with subsection (g) of such section 702 and the procedures adopted in accordance with subsections (d) and (e) of such section 702 at least 30 days before the expiration of such authorization.

(B)

Continuation of existing orders

If the Attorney General and the Director of National Intelligence seek to replace an authorization made pursuant to section 105B of the Foreign Intelligence Surveillance Act of 1978, as added by section 2 of the Protect America Act of 2007 (Public Law 110–55; 121 Stat. 522), by filing a certification in accordance with subparagraph (A), that authorization, and any directives issued thereunder and any order related thereto, shall remain in effect, notwithstanding the expiration provided for in subsection (a) of such section 105B, until the Foreign Intelligence Surveillance Court (as such term is defined in section 701(b)(2) of the Foreign Intelligence Surveillance Act of 1978 (as so added)) issues an order with respect to that certification under section 702(i)(3) of such Act (as so added) at which time the provisions of that section and of section 702(i)(4) of such Act (as so added) shall apply.

(8)

Effective date

Paragraphs (1) through (7) shall take effect as if enacted on August 5, 2007.

(b)

Transition procedures for FISA Amendments Act of 2008 provisions

(1)

Orders in effect on December 31, 2012

Notwithstanding any other provision of this Act, any amendment made by this Act, or the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), any order, authorization, or directive issued or made under title VII of the Foreign Intelligence Surveillance Act of 1978, as amended by section 101(a), shall continue in effect until the date of the expiration of such order, authorization, or directive.

(2)

Applicability of Title VII of FISA to continued orders, authorizations, directives

Notwithstanding any other provision of this Act, any amendment made by this Act, or the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), with respect to any order, authorization, or directive referred to in paragraph (1), title VII of such Act, as amended by section 101(a), shall continue to apply until the later of—

(A)

the expiration of such order, authorization, or directive; or

(B)

the date on which final judgment is entered for any petition or other litigation relating to such order, authorization, or directive.

(3)

Challenge of directives; protection from liability; use of information

Notwithstanding any other provision of this Act or of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.)—

(A)

section 103(e) of such Act, as amended by section 403(a)(1)(B)(ii), shall continue to apply with respect to any directive issued pursuant to section 702(h) of such Act, as added by section 101(a);

(B)

section 702(h)(3) of such Act (as so added) shall continue to apply with respect to any directive issued pursuant to section 702(h) of such Act (as so added);

(C)

section 703(e) of such Act (as so added) shall continue to apply with respect to an order or request for emergency assistance under that section;

(D)

section 706 of such Act (as so added) shall continue to apply to an acquisition conducted under section 702 or 703 of such Act (as so added); and

(E)

section 2511(2)(a)(ii)(A) of title 18, United States Code, as amended by section 101(c)(1), shall continue to apply to an order issued pursuant to section 704 of the Foreign Intelligence Surveillance Act of 1978, as added by section 101(a).

(4)

Reporting requirements

(A)

Continued applicability

Notwithstanding any other provision of this Act or of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), section 601(a) of such Act (50 U.S.C. 1871(a)), as amended by section 101(c)(2), and sections 702(l) and 707 of such Act, as added by section 101(a), shall continue to apply until the date that the certification described in subparagraph (B) is submitted.

(B)

Certification

The certification described in this subparagraph is a certification—

(i)

made by the Attorney General;

(ii)

submitted to the Select Committee on Intelligence of the Senate, the Permanent Select Committee on Intelligence of the House of Representatives, and the Committees on the Judiciary of the Senate and the House of Representatives;

(iii)

that states that there will be no further acquisitions carried out under title VII of the Foreign Intelligence Surveillance Act of 1978, as amended by section 101(a), after the date of such certification; and

(iv)

that states that the information required to be included in a review, assessment, or report under section 601 of such Act, as amended by section 101(c), or section 702(l) or 707 of such Act, as added by section 101(a), relating to any acquisition conducted under title VII of such Act, as amended by section 101(a), has been included in a review, assessment, or report under such section 601, 702(l), or 707.

(5)

Transition procedures concerning the targeting of United States persons overseas

Any authorization in effect on the date of enactment of this Act under section 2.5 of Executive Order 12333 to intentionally target a United States person reasonably believed to be located outside the United States shall continue in effect, and shall constitute a sufficient basis for conducting such an acquisition targeting a United States person located outside the United States until the earlier of—

(A)

the date that authorization expires; or

(B)

the date that is 90 days after the date of the enactment of this Act.

 

Speaker of the House of Representatives.

Vice President of the United States and President of the Senate.

 

Categories: Govenance & Privacy