Text: S.3931 — 109th Congress (2005-2006)

Bill text available as:

Shown Here:
Placed on Calendar Senate (09/25/2006)


Formatting necessary for an accurate reading of this legislative text may be shown by tags (e.g., <DELETED> or <BOLD>) or may be missing from this TXT display. For complete and accurate display of this text, see the PDF or HTML/XML.




[Congressional Bills 109th Congress]
[From the U.S. Government Printing Office]
[S. 3931 Placed on Calendar Senate (PCS)]







                                                       Calendar No. 635
109th CONGRESS
  2d Session
                                S. 3931

   To establish procedures for the review of electronic surveillance 
                               programs.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           September 22, 2006

  Mr. McConnell (for himself and Mr. Frist) introduced the following 
bill; which was read the first time pursuant to the order of September 
              21, 2006, as modified on September 22, 2006

                           September 25, 2006

            Read the second time and placed on the calendar

_______________________________________________________________________

                                 A BILL


 
   To establish procedures for the review of electronic surveillance 
                               programs.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Terrorist Surveillance Act of 
2006''.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) After the terrorist attacks of September 11, 2001, 
        President Bush authorized the National Security Agency to 
        intercept communications between people inside the United 
        States, including American citizens, and terrorism suspects 
        overseas.
            (2) One of the lessons learned from September 11, 2001, is 
        that the enemies who seek to greatly harm and terrorize our 
        Nation utilize technologies and techniques that defy 
        conventional law enforcement practices.
            (3) The President, as the constitutional officer most 
        directly responsible for protecting the United States from 
        attack, requires the ability and means to detect and track an 
        enemy that can master and exploit modern technology.
            (4) It is equally essential, however, that in protecting 
        the United States against our enemies, the President does not 
        compromise the very civil liberties that he seeks to safeguard. 
        As Justice Hugo Black observed, ``The President's power, if 
        any, to issue [an] order must stem either from an Act of 
        Congress or from the Constitution itself.'' Youngstown Sheet & 
        Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952) (opinion by Black, 
        J.). Similarly, in 2004, Justice Sandra Day O'Connor explained 
        in her plurality opinion for the Supreme Court in Hamdi v. 
        Rumsfeld: ``We have long since made clear that a state of war 
        is not a blank check for the President when it comes to the 
        rights of the Nation's citizens.'' Hamdi v. Rumsfeld, 542 U.S. 
        507, 536 (2004) (citations omitted).
            (5) When deciding issues of national security, it is in our 
        Nation's best interest that, to the extent feasible, all 3 
        branches of the Federal Government should be involved. This 
        helps guarantee that electronic surveillance programs do not 
        infringe on the constitutional rights of Americans, while at 
        the same time ensuring that the President has all the powers 
        and means necessary to detect and track our enemies and protect 
        our Nation from attack.
            (6) As Justice Sandra Day O'Connor explained in her 
        plurality opinion for the Supreme Court in Hamdi v. Rumsfeld, 
        ``Whatever power the United States Constitution envisions for 
        the Executive in its exchanges with other nations or with enemy 
        organizations in times of conflict, it most assuredly envisions 
        a role for all 3 branches when individual liberties are at 
        stake.'' Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (citations 
        omitted).
            (7) Similarly, Justice Jackson famously explained in his 
        Youngstown concurrence: ``When the President acts pursuant to 
        an express or implied authorization of Congress, his authority 
        is at its maximum, for it includes all that he possesses in his 
        own right plus all that Congress can delegate ... When the 
        President acts in absence of either a congressional grant or 
        denial of authority, he can only rely upon his own independent 
        powers, but there is a zone of twilight in which he and 
        Congress may have concurrent authority, or in which its 
        distribution is uncertain. Therefore, congressional inertia, 
        indifference or quiescence may sometimes, at least as a 
        practical matter, enable, if not invite, measures on 
        independent presidential responsibility ... When the President 
        takes measures incompatible with the expressed or implied will 
        of Congress, his power is at its lowest ebb, for then he can 
        rely only upon his own constitutional powers minus any 
        constitutional powers of Congress over the matter. Courts can 
        sustain exclusive Presidential control in such a case only by 
        disabling the Congress from acting upon the subject.'' 
        Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 
        (1952) (Jackson, J., concurring).
            (8) Congress clearly has the authority to enact legislation 
        with respect to electronic surveillance programs. The 
        Constitution provides Congress with broad powers of oversight 
        over national security and foreign policy, under article I, 
        section 8 of the Constitution of the United States, which 
        confers on Congress numerous powers, including the powers--
                    (A) ``To declare War, grant Letters of Marque and 
                Reprisal, and make Rules concerning Captures on Land 
                and Water'';
                    (B) ``To raise and support Armies'';
                    (C) ``To provide and maintain a Navy'';
                    (D) ``To make Rules for the Government and 
                Regulation of the land and naval Forces'';
                    (E) ``To provide for calling forth the Militia to 
                execute the Laws of the Union, suppress Insurrections 
                and repel Invasions''; and
                    (F) ``To provide for organizing, arming, and 
                disciplining the Militia, and for governing such Part 
                of them as may be employed in the Service of the United 
                States''.
            (9) While Attorney General Alberto Gonzales explained that 
        the executive branch reviews the electronic surveillance 
        program of the National Security Agency every 45 days to ensure 
        that the program is not overly broad, it is the belief of 
        Congress that approval and supervision of electronic 
        surveillance programs should be conducted outside of the 
        executive branch, by the article III court established under 
        section 103 of the Foreign Intelligence Surveillance Act of 
        1978 (50 U.S.C. 1803) and the congressional intelligence 
        committees. It is also the belief of Congress that it is 
        appropriate for an article III court to pass upon the 
        constitutionality of electronic surveillance programs that may 
        be directed at Americans.
            (10) The Foreign Intelligence Surveillance Court is the 
        proper court to approve and supervise classified electronic 
        surveillance programs because it is adept at maintaining the 
        secrecy with which it was charged and it possesses the 
        requisite expertise and discretion for adjudicating sensitive 
        issues of national security.
            (11) In 1975, [then] Attorney General Edward Levi, a strong 
        defender of executive authority, testified that in times of 
        conflict, the President needs the power to conduct long-range 
        electronic surveillance and that a foreign intelligence 
        surveillance court should be empowered to issue special 
        approval orders in these circumstances.
            (12) Granting the Foreign Intelligence Surveillance Court 
        the authority to review electronic surveillance programs and 
        pass upon their constitutionality is consistent with well-
        established, longstanding practices.
            (13) The Foreign Intelligence Surveillance Court already 
        has broad authority to approve surveillance of members of 
        international conspiracies, in addition to granting warrants 
        for surveillance of a particular individual under sections 104, 
        105, and 402 of the Foreign Intelligence Surveillance Act of 
        1978 (50 U.S.C. 1804, 1805, and 1842).
            (14) Prosecutors have significant flexibility in 
        investigating domestic conspiracy cases. Courts have held that 
        flexible warrants comply with the 4th amendment to the 
        Constitution of the United States when they relate to complex, 
        far-reaching, and multifaceted criminal enterprises like drug 
        conspiracies and money laundering rings. The courts recognize 
        that applications for search warrants must be judged in a 
        common sense and realistic fashion, and the courts permit broad 
        warrant language where, due to the nature and circumstances of 
        the investigation and the criminal organization, more precise 
        descriptions are not feasible.
            (15) The Supreme Court, in the ``Keith Case'', United 
        States v. United States District Court for the Eastern District 
        of Michigan, 407 U.S. 297 (1972), recognized that the standards 
        and procedures used to fight ordinary crime may not be 
        applicable to cases involving national security. The Court 
        recognized that national ``security surveillance may involve 
        different policy and practical considerations from the 
        surveillance of ordinary crime'' and that courts should be more 
        flexible in issuing warrants in national security cases. United 
        States v. United States District Court for the Eastern District 
        of Michigan, 407 U.S. 297, 322 (1972).
            (16) By authorizing the Foreign Intelligence Surveillance 
        Court to review electronic surveillance programs, Congress 
        enables the President to use the necessary means to guard our 
        national security, while also protecting the civil liberties 
        and constitutional rights that we cherish.

SEC. 3. DEFINITIONS.

    The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 
et seq.) is amended--
            (1) by redesignating title VII as title VIII;
            (2) by redesignating section 701 as section 801; and
            (3) by inserting after title VI the following:

             ``TITLE VII--ELECTRONIC SURVEILLANCE PROGRAMS

``SEC. 701. DEFINITIONS.

    ``As used in this title--
            ``(1) the terms `agent of a foreign power', `Attorney 
        General', `contents', `electronic surveillance', `foreign 
        power', `international terrorism', `minimization procedures', 
        `person', `United States', and `United States person' have the 
        same meaning as in section 101;
            ``(2) the term `congressional intelligence committees' 
        means the Select Committee on Intelligence of the Senate and 
        the Permanent Select Committee on Intelligence of the House of 
        Representatives;
            ``(3) the term `electronic surveillance program' means a 
        program to engage in electronic surveillance--
                    ``(A) that has as a significant purpose the 
                gathering of foreign intelligence information or 
                protecting against international terrorism;
                    ``(B) where it is not feasible to name every 
                person, address, or location to be subjected to 
                electronic surveillance;
                    ``(C) where effective gathering of foreign 
                intelligence information requires the flexibility to 
                begin electronic surveillance immediately after 
                learning of suspect activity; and
                    ``(D) where effective gathering of foreign 
                intelligence information requires an extended period of 
                electronic surveillance;
            ``(4) the term `foreign intelligence information' has the 
        same meaning as in section 101(e) and includes information 
        necessary to protect against international terrorism;
            ``(5) the term `Foreign Intelligence Surveillance Court' 
        means the court established under section 103(a); and
            ``(6) the term `Foreign Intelligence Surveillance Court of 
        Review' means the court established under section 103(b).''.

SEC. 4. FOREIGN INTELLIGENCE SURVEILLANCE COURT JURISDICTION TO REVIEW 
              ELECTRONIC SURVEILLANCE PROGRAMS.

    (a) In General.--Title VII of the Foreign Intelligence Surveillance 
Act of 1978, as amended by section 3, is amended by adding at the end 
the following:

``SEC. 702. FOREIGN INTELLIGENCE SURVEILLANCE COURT JURISDICTION TO 
              REVIEW ELECTRONIC SURVEILLANCE PROGRAMS.

    ``(a) Authorization of Review.--
            ``(1) Initial authorization.--The Foreign Intelligence 
        Surveillance Court shall have jurisdiction to issue an order 
        under this title, lasting not longer than 90 days, that 
        authorizes an electronic surveillance program to obtain foreign 
        intelligence information or to protect against international 
        terrorism.
            ``(2) Reauthorization.--The Foreign Intelligence 
        Surveillance Court shall have jurisdiction to reauthorize an 
        electronic surveillance program for a period of time not longer 
        than such court determines to be reasonable. There shall be no 
        limit on the number of times the Attorney General may seek 
        reauthorization of an electronic surveillance program.
            ``(3) Resubmission or appeal.--In the event that the 
        Foreign Intelligence Surveillance Court refuses to approve an 
        application under this subsection, the court shall state its 
        reasons in a written opinion, which it shall submit to the 
        Attorney General. The Attorney General or his designee may 
        submit a new application under section 703 for the electronic 
        surveillance program, with no limit on the number of 
        resubmissions that may be made. Alternatively, the Attorney 
        General may appeal the decision of the Foreign Intelligence 
        Surveillance Court to the Foreign Intelligence Surveillance 
        Court of Review.
            ``(4) Continued surveillance under title i.--
                    ``(A) In general.--If, at any time, the Attorney 
                General determines that the known facts and 
                circumstances relating to any target within the United 
                States under this title satisfy the criteria for an 
                application under section 104 for an order for 
                electronic surveillance of the target under section 
                105, the Attorney General shall--
                            ``(i) discontinue the surveillance of the 
                        target under this title; or
                            ``(ii) continue the surveillance of the 
                        target under this title, subject to the 
                        requirements of subparagraph (B).
                    ``(B) Continuation of surveillance.--
                            ``(i) In general.--The Attorney General may 
                        continue surveillance of a target under this 
                        title as specified in subparagraph (A)(ii) only 
                        if the Attorney General makes an application 
                        under section 104 for an order for electronic 
                        surveillance of the target under section 105 as 
                        soon as the Attorney General determines 
                        practicable after the date on which the 
                        Attorney General makes the determination to 
                        continue surveillance of the target under 
                        subparagraph (A)(ii).
                            ``(ii) Period.--The period during which the 
                        Attorney General may continue surveillance of a 
                        target under this title after the Attorney 
                        General has determined that making an 
                        application is practicable shall be limited to 
                        a reasonable period, as determined by the 
                        Attorney General, during which the application 
                        is prepared and the period during which the 
                        application of the Attorney General under 
                        section 104 for an order for electronic 
                        surveillance of the target under section 105 is 
                        pending under title I, including during any 
                        period in which appeal from the denial of the 
                        application is pending with the Foreign 
                        Intelligence Surveillance Court of Review or 
                        the Supreme Court under section 103(b).
    ``(b) Mandatory Transfer for Review.--
            ``(1) In general.--In any case before any court challenging 
        the legality of classified communications intelligence activity 
        relating to a foreign threat, including an electronic 
        surveillance program, or in which the legality of any such 
        activity or program is in issue, if the Attorney General files 
        an affidavit under oath that the case should be transferred to 
        the Foreign Intelligence Surveillance Court of Review because 
        further proceedings in the originating court would harm the 
        national security of the United States, the originating court 
        shall transfer the case of the Foreign Intelligence 
        Surveillance for further proceedings under this subsection.
            ``(2) Procedures for review.--The Foreign Intelligence 
        Surveillance Court shall have jurisdiction as appropriate to 
        determine standing and the legality of the program to the 
        extent necessary for resolution of the underlying case. All 
        proceedings under this paragraph shall be conducted in 
        accordance with the procedures set forth in section 106(f). In 
        the event the Foreign Intelligence Surveillance Court 
        determines that, in the context of a criminal proceeding, the 
        Constitution of the United States would require the disclosure 
        of national security information, any such constitutionally 
        required disclosure shall be governed by the Classified 
        Information Procedures Act, (18 U.S.C. App.), or if applicable, 
        section 2339B(f) of title 18, United States Code.
            ``(3) Appeal, certiorari, and effects of decisions.--The 
        decision of the Foreign Intelligence Surveillance Court made 
        under paragraphs (1) and (2), including a decision that the 
        disclosure of national security information is constitutionally 
        required, shall be subject to review by the Foreign 
        Intelligence Surveillance Court of Review under section 103(b). 
        The Supreme Court of the United States shall have jurisdiction 
        to review decisions of the Foreign Intelligence Surveillance 
        Court of Review by writ of certiorari granted upon the petition 
        of the United States. The decision by the Foreign Intelligence 
        Surveillance Court shall otherwise be binding in all other 
        courts.
            ``(4) Dismissal.--The Foreign Intelligence Surveillance 
        Court or a court that is an originating court under paragraph 
        (1) may dismiss a challenge to the legality of an electronic 
        surveillance program for any reason provided for under law.
            ``(5) Preservation of litigation privileges.--Nothing in 
        this Act shall be construed to abrogate, limit, or affect any 
        litigation privileges in any court.''.

SEC. 5. APPLICATIONS FOR APPROVAL OF ELECTRONIC SURVEILLANCE PROGRAMS.

    Title VII of the Foreign Intelligence Surveillance Act of 1978, as 
amended by section 4, is amended by adding at the end the following:

``SEC. 703. APPLICATIONS FOR APPROVAL OF ELECTRONIC SURVEILLANCE 
              PROGRAMS.

    ``(a) In General.--Each application for approval of an electronic 
surveillance program under this title (including resubmission or 
application for reauthorization) shall--
            ``(1) be made by the Attorney General or his designee;
            ``(2) include a statement of the authority conferred on the 
        Attorney General by the President of the United States;
            ``(3) include a statement setting forth the legal basis for 
        the conclusion by the Attorney General that the electronic 
        surveillance program is consistent with the Constitution of the 
        United States;
            ``(4) certify that a significant purpose of the electronic 
        surveillance program is to obtain foreign intelligence 
        information or to protect against international terrorism;
            ``(5) certify that the information sought cannot reasonably 
        be obtained by normal investigative techniques
            ``(6) certify that the information sought cannot reasonably 
        be obtained through an application under section 104;
            ``(7) include a statement of the means and operational 
        procedures by which the electronic surveillance will be 
        executed and effected;
            ``(8) include an explanation of how the electronic 
        surveillance program is reasonably designed to ensure that the 
        communications that are acquired are communications of or 
        with--
                    ``(A) a foreign power that engages in international 
                terrorism or activities in preparation therefor;
                    ``(B) an agent of a foreign power that engages in 
                international terrorism or activities in preparation 
                therefor;
                    ``(C) a person reasonably believed to have 
                communication with or be associated with a foreign 
                power that engages in international terrorism or 
                activities in preparation therefor or an agent of a 
                foreign power that engages in international terrorism 
                or activities in preparation therefor; or
                    ``(D) a foreign power that poses an imminent threat 
                of attack likely to cause death, serious injury, or 
                substantial economic damage to the United States, or an 
                agent of a foreign power thereof;
            ``(9) include a statement of the proposed minimization 
        procedures;
            ``(10) if the electronic surveillance program that is the 
        subject of the application was initiated prior to the date the 
        application was submitted, specify the date that the program 
        was initiated;
            ``(11) include a description of all previous applications 
        that have been made under this title involving the electronic 
        surveillance program in the application (including the 
        minimization procedures and the means and operational 
        procedures proposed) and the decision on each previous 
        application; and
            ``(12) include a statement of facts concerning the 
        implementation of the electronic surveillance program described 
        in the application, including, for any period of operation of 
        the program authorized not less than 90 days prior to the date 
        of submission of the application--
                    ``(A) the minimization procedures implemented; and
                    ``(B) the means and operational procedures by which 
                the electronic surveillance was executed and effected.
    ``(b) Additional Information.--The Foreign Intelligence 
Surveillance Court may require the Attorney General to furnish such 
other information as may be necessary to make a determination under 
section 704.''.

SEC. 6. APPROVAL OF ELECTRONIC SURVEILLANCE PROGRAMS.

    Title VII of the Foreign Intelligence Surveillance Act 18 of 1978, 
as amended by section 5, is amended by adding at the end the following:

``SEC. 704. APPROVAL OF ELECTRONIC SURVEILLANCE PROGRAMS.

    ``(a) Necessary Findings.--Upon receipt of an application under 
section 703, the Foreign Intelligence Surveillance Court shall enter an 
ex parte order as requested, or as modified, approving the electronic 
surveillance program if it finds that--
            ``(1) the President has authorized the Attorney General to 
        make the application for electronic surveillance for foreign 
        intelligence information or to protect against international 
        terrorism;
            ``(2) approval of the electronic surveillance program in 
        the application is consistent with the Constitution of the 
        United States;
            ``(3) the electronic surveillance program is reasonably 
        designed to ensure that the communications that are acquired 
        are communications of or with--
                    ``(A) a foreign power that engages in international 
                terrorism or activities in preparation therefor;
                    ``(B) an agent of a foreign power that is engaged 
                in international terrorism or activities in preparation 
                therefor;
                    ``(C) a person reasonably believed to have 
                communication with or be associated with a foreign 
                power that is engaged in international terrorism or 
                activities in preparation therefor or an agent of a 
                foreign power that is engaged in international 
                terrorism or activities in preparation therefor; or
                    ``(D) a foreign power that poses an imminent threat 
                of attack likely to cause death, serious injury, or 
                substantial economic damage to the United States, or an 
                agent of a foreign power thereof;
            ``(4) the proposed minimization procedures meet the 
        definition of minimization procedures under section 101(h); and
            ``(5) the application contains all statements and 
        certifications required by section 703.
    ``(b) Considerations.--In considering the constitutionality of the 
electronic surveillance program under subsection (a), the Foreign 
Intelligence Surveillance Court may consider--
            ``(1) whether the electronic surveillance program has been 
        implemented in accordance with the proposal by the Attorney 
        General, by comparing--
                    ``(A) the minimization procedures proposed with the 
                minimization procedures actually implemented;
                    ``(B) the nature of the information sought with the 
                nature of the information actually obtained; and
                    ``(C) the means and operational procedures proposed 
                with the means and operational procedures actually 
                implemented; and
            ``(2) whether foreign intelligence information has been 
        obtained through the electronic surveillance program.
    ``(c) Contents of Order.--An order approving an electronic 
surveillance program under this section shall direct--
            ``(1) that the minimization procedures be followed;
            ``(2) that, upon the request of the applicant, specified 
        communication or other common carriers, landlords, custodians, 
        or other specified persons, furnish the applicant forthwith 
        with all information, facilities, or technical assistance 
        necessary to undertake the electronic surveillance program in 
        such a manner as will protect its secrecy and produce a minimum 
        of interference with the services that such carriers, 
        landlords, custodians, or other persons are providing potential 
        targets of the electronic surveillance program;
            ``(3) that any records concerning the electronic 
        surveillance program or the aid furnished or retained by such 
        carriers, landlords, custodians, or other persons are 
        maintained under security procedures approved by the Attorney 
        General and the Director of National Intelligence; and
            ``(4) that the applicant compensate, at the prevailing 
        rate, such carriers, landlords, custodians, or other persons 
        for furnishing such aid.''.

SEC. 7. CONGRESSIONAL OVERSIGHT.

    Title VII of the Foreign Intelligence Surveillance Act of 1978, as 
amended by section 6, is amended by adding at the end the following:

``SEC. 705. CONGRESSIONAL OVERSIGHT.

    ``(a) In General.--Not less often than every 180 days, the Attorney 
General shall submit to the congressional intelligence committees a 
report in classified form on the activities during the previous 180-day 
period under any electronic surveillance program authorized under this 
title.
    ``(b) Contents.--Each report submitted under subsection (a) shall 
provide, with respect to the previous 180-day period, a description 
of--
            ``(1) the minimization procedures implemented;
            ``(2) the means and operational procedures by which the 
        electronic surveillance program was executed and effected;
            ``(3) significant decisions of the Foreign Intelligence 
        Surveillance Court on applications made under section 703;
            ``(4) the total number of applications made for orders 
        approving electronic surveillance programs pursuant to this 
        title; and
            ``(5) the total number of orders applied for that have been 
        granted, modified, or denied.
    ``(c) Rule of Construction.--Nothing in this title shall be 
construed to limit the authority or responsibility of any committee of 
either House of Congress to obtain such information as such committee 
may need to carry out its respective functions and duties.''.

SEC. 8. CLARIFICATION OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 
              1978.

    (a) Repeal.--Sections 111, 309, and 404 of the Foreign Intelligence 
Surveillance Act of 1978 (50 U.S.C. 1811, 1829, and 1844) are repealed.
    (b) Clarifying Amendments.--
            (1) Title 18.--Section 2511(2) of title 18, United States 
        Code, is amended--
                    (A) in paragraph (e), by striking ``, as defined in 
                section 101'' and all that follows through the end of 
                the paragraph and inserting the following: ``under the 
                Constitution or the Foreign Intelligence Surveillance 
                Act of 1978.''; and
                    (B) in paragraph (f), by striking ``from 
                international or foreign communications,'' and all that 
                follows through the end of the paragraph and inserting 
                ``that is authorized under a Federal statute or the 
                Constitution of the United States.''.
            (2) FISA.--Section 109 of the Foreign Intelligence 
        Surveillance Act of 1978 (50 U.S.C. 1809) is amended--
                    (A) in subsection (a)--
                            (i) in paragraph (1)--
                                    (I) by striking ``authorized by 
                                statute'' and inserting ``authorized by 
                                law''; and
                                    (II) by striking ``or'' at the end;
                            (ii) in paragraph (2)--
                                    (I) by striking ``authorized by 
                                statute'' and inserting ``authorized by 
                                law''; and
                                    (II) by striking the period and 
                                inserting ``; or''; and
                            (iii) by adding at the end the following:
            ``(3) and knowingly discloses or uses information obtained 
        under color of law by electronic surveillance in a manner or 
        for a purpose not authorized by law.''; and
                    (B) in subsection (c)--
                            (i) by striking ``$10,000'' and inserting 
                        ``$100,000''; and
                            (ii) by striking ``five years'' and 
                        inserting ``15 years''.

SEC. 9. MODERNIZING AMENDMENTS TO FISA.

    (a) Reference.--In this section, a reference to ``FISA'' shall mean 
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et 
seq.).
    (b) Definitions.--Section 101 of FISA (50 U.S.C. 1801) is amended--
            (1) in subsection (b)(1)--
                    (A) in subparagraph (C), by striking ``or'' after 
                the semicolon; and
                    (B) by adding at the end the following:
                    ``(D) otherwise is reasonably expected to possess, 
                control, transmit, or receive foreign intelligence 
                information while that person is in the United States, 
                provided that the official making the certification 
                required by section 104(a)(6) deems such foreign 
                intelligence information to be significant; or'';
            (2) by striking subsection (f) and inserting the following:
    ``(f) `Electronic surveillance' means--
            ``(1) the installation or use of an electronic, mechanical, 
        or other surveillance device for acquiring information by 
        intentionally directing the surveillance at a particular known 
        person who is reasonably believed to be in the United States 
        under circumstances in which that person has a reasonable 
        expectation of privacy and a warrant would be required for law 
        enforcement purposes; or
            ``(2) the intentional acquisition of the contents of any 
        communication under circumstances in which a person has a 
        reasonable expectation of privacy and a warrant would be 
        required for law enforcement purposes, and if both the sender 
        and all intended recipients are reasonably believed to be 
        located within the United States.'';
            (3) in subsection (h), by striking paragraph (4) and 
        inserting the following:
            ``(4) notwithstanding paragraphs (1), (2), and (3), with 
        respect to any electronic surveillance approved pursuant to 
        section 102 or 704, procedures that require that no contents of 
        any communication originated or sent by a United States person 
        shall be disclosed, disseminated, used or retained for longer 
        than 7 days unless a court order under section 105 is obtained 
        or unless the Attorney General determines that the information 
        indicates a threat of death or serious bodily harm to any 
        person.''.
            (4) by striking subsection (l); and
            (5) by striking subsection (n) and inserting the following:
    ``(n) `contents', when used with respect to a communication, 
includes any information concerning the substance, symbols, sounds, 
words, purport, or meaning of a communication, and does not include 
dialing, routing, addressing, or signaling information.''.
    (c) Electronic Surveillance Authorization.--Section 102 of FISA (50 
U.S.C. 1802) is amended to read as follows:

     ``electronic surveillance authorization without court order; 
certification by attorney general; reports to congressional committees; 
transmittal under seal; duties and compensation of communication common 
              carrier; applications; jurisdiction of court

    ``Sec. 102.  (a)(1) Notwithstanding any other law, the President 
through the Attorney General, may authorize electronic surveillance 
without a court order under this title to acquire foreign intelligence 
information for periods of up to 1 year if the Attorney General 
certifies in writing under oath that the electronic surveillance is 
directed at--
            ``(A)(i) the acquisition of the contents of communications 
        of foreign powers, as defined in paragraph (1), (2), or (3) of 
        section 101(a), or a person other than a United States person 
        acting as an agent of a foreign power, as defined in section 
        101(b)(1)(A) or (B); or
            ``(ii) the acquisition of technical intelligence, other 
        than the spoken communications of individuals, from property or 
        premises under the open and exclusive control of a foreign 
        power, as defined in paragraph (1), (2), or (3) of section 
        101(a); and
            ``(B) the proposed minimization procedures with respect to 
        such surveillance meet the definition of minimization 
        procedures under section 101(h);
if the Attorney General reports such minimization procedures and any 
changes thereto to the Select Committee on Intelligence of the Senate 
and the Permanent Select Committee on Intelligence of the House of 
Representatives at least 30 days prior to their effective date, unless 
the Attorney General determines immediate action is required and 
notifies the committees immediately of such minimization procedures and 
the reason for their becoming effective immediately.
    ``(2) An electronic surveillance authorized by this subsection may 
be conducted only in accordance with the Attorney General's 
certification and the minimization procedures. The Attorney General 
shall assess compliance with such procedures and shall report such 
assessments to the Select Committee on Intelligence of the Senate and 
the Permanent Select Committee on Intelligence of the House of 
Representatives under section 108(a). If an electronic surveillance 
authorized by this subsection is directed at an agent of a foreign 
power, the Attorney General's report assessing compliance with the 
minimization procedures shall also include a statement of the facts and 
circumstances relied upon to justify the belief that the target of the 
electronic surveillance is an agent of a foreign power.
    ``(3) The Attorney General shall immediately transmit under seal to 
the court established under section 103(a) a copy of any certification 
under this subsection. Such certification shall be maintained under 
security measures established by the Chief Justice with the concurrence 
of the Attorney General, in consultation with the Director of National 
Intelligence, and shall remain sealed unless--
            ``(A) an application for a court order with respect to the 
        surveillance is made under section 104; or
            ``(B) the certification is necessary to determine the 
        legality of the surveillance under section 106(f).
    ``(b)(1) Notwithstanding any other provision of law, the President, 
through the Attorney General, may authorize the acquisition of foreign 
intelligence information for periods of up to 1 year concerning a 
person reasonably believed to be outside the United States if the 
Attorney General certifies in writing under oath that he has determined 
that--
            ``(A) the acquisition does not constitute electronic 
        surveillance as defined in section 101(f);
            ``(B) the acquisition involves obtaining the foreign 
        intelligence information from or with the assistance of a wire 
        or electronic communications service provider, custodian, or 
        other person (including any officer, employee, agent, or other 
        specified person thereof) who has access to wire or electronic 
        communications, either as they are transmitted or while they 
        are stored, or equipment that is being or may be used to 
        transmit or store such communications;
            ``(C) a significant purpose of the acquisition is to obtain 
        foreign intelligence information; and
            ``(D) the minimization procedures to be employed with 
        respect to such acquisition activity meet the definition of 
        minimization procedures under section 101(h).
    ``(2) Such certification need not identify the specific facilities, 
places, premises, or property at which the acquisition will be 
directed.
    ``(3) An acquisition undertaken pursuant to this subsection may be 
conducted only in accordance with the Attorney General's certification 
and the minimization procedures adopted by the Attorney General. The 
Attorney General shall assess compliance with such procedures and shall 
report such assessments to the Select Committee on Intelligence of the 
Senate and the Permanent Select Committee on Intelligence of the House 
of Representatives under section 108(a).
    ``(4) The Attorney General shall immediately transmit under seal to 
the court established under section 103(a) a copy of any certification 
of the Attorney General under this subsection. Such certification shall 
be maintained under security measures established by the Chief Justice 
with the concurrence of the Attorney General, in consultation with the 
Director of National Intelligence, and shall remain sealed unless the 
certification is necessary to determine the legality of the acquisition 
under subsection (o).
    ``(c) With respect to the acquisition authorized under this 
section, the Attorney General may direct a specified person to--
            ``(1) furnish the government forthwith all information, 
        facilities, and assistance necessary to accomplish the 
        acquisition in such a manner as will protect its secrecy and 
        produce a minimum of interference with the services that such 
        person is providing to the target; and
            ``(2) 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 person wishes to maintain.
    ``(d) The government shall compensate, at the prevailing rate, such 
specified person for furnishing the aid set forth in subsection (c).
    ``(e) In the case of a failure to comply with a directive issued 
pursuant to this section, the Attorney General may invoke the aid of 
the court established under section 103(a) to compel compliance with 
the directive. The court shall issue an order requiring the person or 
entity to comply with the directive forthwith if it finds that the 
directive was issued in accordance with subsection (a) or (b) and is 
otherwise lawful. Any failure to obey the order of the court may be 
punished by the court as contempt thereof. Any process under this 
section may be served in any judicial district in which the person or 
entity may be found.
    ``(f)(1)(A) A person receiving an Attorney General directive issued 
pursuant to this section may challenge the legality of that directive 
by filing a petition with the pool established by section 103(e)(1).
    ``(B) The presiding judge shall immediately assign a petition to 
one of the judges serving in the pool established by section 103(e)(1). 
Not later than 24 hours after the assignment of such petition, the 
assigned judge shall conduct an initial review of the directive. If the 
assigned judge determines that the petition is frivolous, the assigned 
judge shall immediately deny the petition and affirm the directive or 
any part thereof that is the subject of the petition. If the assigned 
judge determines the petition is not frivolous, the assigned judge 
shall within 72 hours consider the petition in accordance with the 
procedures established under section 103(e)(2) and provide a written 
statement for the record of the reasons for any determination under 
this subsection.
    ``(2) A judge considering a petition to modify or set aside a 
directive may grant such petition only if the judge finds that such 
directive does not meet the requirements of this section or is 
otherwise unlawful. If the judge does not modify or set aside the 
directive, the judge shall immediately affirm such directive, and order 
the recipient to comply therewith.
    ``(3) Any directive not explicitly modified or set aside consistent 
with this subsection shall remain in full effect.
    ``(g) A petition for review of a decision under subsection (f) to 
affirm, modify, or set aside a directive by the Government or any 
person receiving such directive shall be made within 7 days of issuance 
of the decision required by subsection (f) to the court of review 
established under section 103(b), which shall have jurisdiction to 
consider such petitions. The court of review shall provide for the 
record a written statement of the reasons for its decision and, on 
petition by the Government or any person receiving such directive for a 
writ of certiorari, the record shall be transmitted under seal to the 
Supreme Court of the United States, which shall have jurisdiction to 
review such decision.
    ``(h) Judicial proceedings under this section shall be concluded as 
expeditiously as possible. The record of proceedings, including 
petitions filed, orders granted, and statements of reasons for 
decision, shall be maintained under security measures established by 
the Chief Justice of the United States, in consultation with the 
Attorney General and the Director of National Intelligence.
    ``(i) 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 thereof, which may include classified 
information.
    ``(j) No cause of action shall lie in any court against any 
provider of a communication service or other person (including any 
officer, employee, agent, or other specified person thereof) for 
furnishing any information, facilities, or assistance in accordance 
with a directive under subsection (a) or (b).
    ``(k) Information acquired pursuant to an Attorney General 
authorization under this section concerning any United States person 
may be used and disclosed by Federal officers and employees without the 
consent of the United States person only in accordance with the 
minimization procedures required by subsection (a) or (b), as 
applicable. No otherwise privileged communication obtained in 
accordance with, or in violation of, the provisions of this section 
shall lose its privileged character. No information from an acquisition 
under this section may be used or disclosed by Federal officers or 
employees except for lawful purposes.
    ``(l) No information acquired pursuant to this section shall be 
disclosed for law enforcement purposes unless such disclosure is 
accompanied by a statement that such information, or any information 
derived therefrom, may only be used in a criminal proceeding with the 
advance authorization of the Attorney General.
    ``(m) Whenever the Government intends to enter into evidence or 
otherwise use or disclose in any trial, hearing, or other proceeding in 
or before any court, department, officer, agency, regulatory body, or 
other authority of the United States, against an aggrieved person, any 
information obtained or derived from an acquisition under this section, 
the Government shall, prior to the trial, hearing, or other proceeding 
or at a reasonable time prior to an effort to so disclose or so use 
that information or submit it in evidence, notify the aggrieved person 
and the court or other authority in which the information is to be 
disclosed or used that the Government intends to so disclose or so use 
such information.
    ``(n) Whenever any State or political subdivision thereof intends 
to enter into evidence or otherwise use or disclose in any trial, 
hearing, or other proceeding in or before any court, department, 
officer, agency, regulatory body, or other authority of a State or a 
political subdivision thereof, against an aggrieved person any 
information obtained or derived from an acquisition under this section, 
the State or political subdivision thereof shall notify the aggrieved 
person, the court or other authority in which the information is to be 
disclosed or used, and the Attorney General that the State or political 
subdivision thereof intends to so disclose or so use such information.
    ``(o) Any person against whom evidence obtained or derived from an 
acquisition authorized pursuant to this section to which he is an 
aggrieved person is to be, or has been, introduced or otherwise used or 
disclosed in any trial, hearing, or other proceeding in or before any 
court, department, officer, agency, regulatory body, or other authority 
of the United States, a State, or a political subdivision thereof, may 
move to suppress the evidence obtained or derived from such acquisition 
on the grounds that--
            ``(1) the information was unlawfully acquired; or
            ``(2) the acquisition was not made in conformity with an 
        order of authorization or approval.
Such a motion shall be made before the trial, hearing, or other 
proceeding unless there was no opportunity to make such a motion or the 
person was not aware of the grounds of the motion.
    ``(p) Whenever a court or other authority is notified pursuant to 
subsection (m) or (n), whenever a motion is made pursuant to subsection 
(o), or whenever any motion or request is made by an aggrieved person 
pursuant to any other statute or rule of the United States or any State 
before any court or other authority of the United States or any State 
to discover or obtain an Attorney General directive or other materials 
relating to the acquisition authorized under this section or to 
discover, obtain, or suppress evidence or information obtained or 
derived from the acquisition authorized under this section, the United 
States district court or, where the motion is made before another 
authority, the United States district court in the same district as the 
authority, shall, notwithstanding any other law, if the Attorney 
General files an affidavit under oath that disclosure or an adversary 
hearing would harm the national security of the United States, review 
in camera and ex parte the directive, and such other materials relating 
to the acquisition as may be necessary to determine whether the 
acquisition authorized under this section was lawfully authorized and 
conducted. In making this determination, the court may disclose to the 
aggrieved person, under appropriate security procedures and protective 
orders, portions of the directive or other materials relating to the 
acquisition only where such disclosure is necessary to make an accurate 
determination of the legality of the acquisition.
    ``(q) If the United States district court pursuant to subsection 
(o) determines that the acquisition authorized under this section was 
not lawfully authorized or conducted, it shall, in accordance with the 
requirements of law, suppress the evidence which was unlawfully 
obtained or derived or otherwise grant the motion of the aggrieved 
person. If the court determines that such acquisition was lawfully 
authorized and conducted, it shall deny the motion of the aggrieved 
person except to the extent that due process requires discovery or 
disclosure.
    ``(r) Orders granting motions or requests under subsection (o), 
decisions under this section that an acquisition was not lawfully 
authorized or conducted, and orders of the United States district court 
requiring review or granting disclosure of directives or other 
materials relating to such acquisition shall be final orders and 
binding upon all courts of the United States and the several States 
except a United States court of appeals and the Supreme Court.
    ``(s) Federal officers who acquire foreign intelligence information 
under this section may consult with Federal law enforcement officers or 
law enforcement personnel of a State or political subdivision of a 
State (including the chief executive officer of that State or political 
subdivision who has the authority to appoint or direct the chief law 
enforcement officer of that State or political subdivision) to 
coordinate efforts to investigate or protect against--
            ``(1) actual or potential attack or other grave hostile 
        acts of a foreign power or an agent of a foreign power;
            ``(2) sabotage, international terrorism, or the development 
        or proliferation of weapons of mass destruction by a foreign 
        power or an agent of a foreign power; or
            ``(3) clandestine intelligence activities by an 
        intelligence service or network of a foreign power or by an 
        agent of a foreign power.
    ``(t) Coordination authorized by subsection (s) shall not preclude 
the certification required by subsection (a) or (b), as applicable.
    ``(u) Retention of Directives and Orders.--Directives made and 
orders granted under this section shall be retained for a period of at 
least 10 years from the date when they were made.''.
    (d) Designation of Judges.--Section 103 of FISA (50 U.S.C. 1803) is 
amended--
            (1) in subsection (a), by inserting, ``at least'' before 
        ``seven of the United States judicial circuits''; and
            (2) at the end by adding the following new subsection:
    ``(g) Applications for a court order under this title are 
authorized if the President has, by written authorization, empowered 
the Attorney General to approve applications to the court having 
jurisdiction under this section, and a judge to whom an application is 
made may, notwithstanding any other law, grant an order, in conformity 
with section 105, approving electronic surveillance of a foreign power 
or an agent of a foreign power for the purpose of obtaining foreign 
intelligence information.''.
    (e) Applications for Court Orders.--Section 104 of FISA (50 U.S.C. 
1804) is amended--
            (1) in subsection (a), by striking paragraphs (6) through 
        (11) and inserting the following:
            ``(6) a certification or certifications by the Assistant to 
        the President for National Security Affairs or an executive 
        branch official authorized by the President to conduct 
        electronic surveillance for foreign intelligence purposes--
                    ``(A) that the certifying official deems the 
                information sought to be foreign intelligence 
                information;
                    ``(B) that a significant purpose of the 
                surveillance is to obtain foreign intelligence 
                information;
                    ``(C) that such information cannot reasonably be 
                obtained by normal investigative techniques; and
                    ``(D) including 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;
            ``(7) a statement of the period of time for which the 
        electronic surveillance is required to be maintained, and if 
        the nature of the intelligence gathering is such that the 
        approval of the use of electronic surveillance under this title 
        should not automatically terminate when the described type of 
        information has first been obtained, a description of facts 
        supporting the belief that additional information of the same 
        type will be obtained thereafter;
            ``(8) a summary description of the nature of the 
        information sought and the type of communications or activities 
        to be subject to the surveillance;
            ``(9) a summary statement of the facts concerning all 
        previous applications that have been made to any judge under 
        this title involving any of the persons, facilities, or places 
        specified in the application, and the action taken on each 
        previous application; and
            ``(10) a summary statement of the means by which the 
        surveillance will be effected and a statement whether physical 
        entry is required to effect the surveillance.'';
            (2) by striking subsection (b);
            (3) by redesignating subsections (c) through (e) as 
        subsections (b) through (d), respectively; and
            (4) in subsection (d)(1)(A), as redesignated by paragraph 
        (3), by inserting after ``Secretary of State'' inserting 
        ``Director of the Central Intelligence Agency''.
    (f) Issuance of Order.--Section 105 of FISA (50 U.S.C. 1805) is 
amended--
            (1) in subsection (a), by--
                    (A) striking paragraph (1); and
                    (B) redesignating paragraphs (2) through (5) as 
                paragraphs (1) through (4), respectively;
            (2) by striking paragraph (1) of subsection (c) and 
        inserting the following:
            ``(1) An order approving an electronic surveillance under 
        this section shall specify--
                    ``(A) the identity, if known, or a description of 
                the target of the electronic surveillance identified or 
                described in the application pursuant to section 
                104(a)(3);
                    ``(B) the nature and location of each of the 
                facilities or places at which the electronic 
                surveillance will be directed, if known;
                    ``(C) the period of time during which the 
                electronic surveillance is approved;
                    ``(D) the type of information sought to be acquired 
                and the type of communications or activities to be 
                subjected to the surveillance; and
                    ``(E) the means by which the electronic 
                surveillance will be effected and whether physical 
                entry will be used to effect the surveillance.'';
            (3) by striking subsection (d) and inserting the following:
    ``(d) Each order under this section shall specify the type of 
electronic surveillance involved, including whether physical entry is 
required.'';
            (4) by striking paragraph (2) of subsection (e) and 
        inserting the following:
    ``(2) Extensions of an order issued under this title may be granted 
on the same basis as an original order upon an application for an 
extension and new findings made in the same manner as required for an 
original order and may be for a period not longer than the court 
determines to be reasonable or 1 year, whichever is less.'';
            (5) by striking subsection (f) and inserting the following:
    ``(f)(1) Notwithstanding any other provision of this title, when an 
executive branch officer appointed by the President with the advice and 
consent of the Senate who is authorized by the President to conduct 
electronic surveillance reasonably determines that--
            ``(A) 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; and
            ``(B) the factual basis for issuance of an order under this 
        title to approve such surveillance exists;
that official may authorize the emergency employment of electronic 
surveillance in accordance with paragraph (2).
    ``(2) Under paragraph (1), the following requirements shall be 
satisfied:
            ``(A) The Attorney General shall be informed of the 
        emergency electronic surveillance.
            ``(B) A judge having jurisdiction under section 103 shall 
        be informed by the Attorney General or his designee as soon as 
        practicable following such authorization that the decision has 
        been made to employ emergency electronic surveillance.
            ``(C) An application in accordance with this title shall be 
        made to that judge or another judge having jurisdiction under 
        section 103 as soon as practicable, but not more than 7 days 
        after such surveillance is authorized. 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 emergency 
        authorization, whichever is earliest. 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. A denial of the application made under this 
        subsection may be reviewed as provided in section 103.
            ``(D) The official authorizing the emergency employment of 
        electronic surveillance shall require that the minimization 
        procedures required by this title for the issuance of a 
        judicial order be followed.''; and
            (6) in subsection (i)--
                    (A) by striking ``a wire or'' and inserting 
                ``any'';
                    (B) by striking ``chapter'' and inserting 
                ``title''; and
                    (C) by adding at the end ``, or in response to 
                certification by the Attorney General or his designee 
                seeking information, facilities, or technical 
                assistance from such person under section 102 of this 
                title''.
    (g) Use of Information.--Section 106 of FISA (50 U.S.C. 1806) is 
amended--
            (1) in subsection (i)--
                    (A) by striking ``radio''; and
                    (B) by inserting ``contain foreign intelligence 
                information or'' after ``the Attorney General 
                determines that the contents'' inserting ``contain 
                foreign intelligence information or''; and
            (2) in subsection (k), by striking ``1804(a)(7)'' and 
        inserting ``104(a)(6)''.
    (h) Congressional Oversight.--Section 108 of FISA (50 U.S.C. 1808) 
is amended by adding at the end the following:
    ``(c) Document Management System for Applications for Orders 
Approving Electronic Surveillance.--
            ``(1) System proposed.--The Attorney General and Director 
        of National Intelligence shall, in consultation with the 
        Director of the Federal Bureau of Investigation, the Director 
        of the National Security Agency, the Director of the Central 
        Intelligence Agency, and the court established under section 
        103(b), conduct a feasibility study to develop and implement a 
        secure, classified document management system that permits the 
        prompt preparation, modification, and review by appropriate 
        personnel of the Department of Justice, the Federal Bureau of 
        Investigation, the National Security Agency, and other 
        applicable elements of the United States Government of 
        applications under section 104 before their submittal to that 
        court.
            ``(2) Scope of system.--The document management system 
        proposed in paragraph (1) shall--
                    ``(A) permit and facilitate the prompt submittal of 
                applications and all other matters, including 
                electronic filings, to the court established under 
                section 103(b) under section 104 or 105(g)(5); and
                    ``(B) permit and facilitate the prompt transmittal 
                of rulings of that court to personnel submitting 
                applications described in paragraph (1).''.
    (i) Amendments to Fisa Title I Relating to Weapons of Mass 
Destruction.--
            (1) Section 101 of FISA, as amended by subsection (b) of 
        this section, is further amended--
                    (A) in subsection (b)(1)--
                            (i) by striking ``or'' at the end of 
                        subparagraph (D);
                            (ii) by redesignating subparagraph (E) as 
                        subparagraph (F); and
                            (iii) by inserting after subparagraph (D) 
                        the following new subparagraph (E):
                    ``(E) engages in the development or proliferation 
                of weapons of mass destruction, or activities in 
                preparation therefor; or;'';
                    (B) in subsection (b)(2)(C), by striking ``sabotage 
                or international terrorism'' and inserting ``sabotage, 
                international terrorism, or the development or 
                proliferation of weapons of mass destruction''; and
                    (C) by inserting after subsection (k) the following 
                new subsection (l):
    ``(l) `Weapon of mass destruction' means--
            ``(1) any destructive device (as that term is defined in 
        section 921 of title 18, United States Code) that is intended 
        or has the capability, to cause death or serious bodily injury 
        to a significant number of people;
            ``(2) any weapon that is designed or intended to cause 
        death or serious bodily injury 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 those terms are defined in section 178 of title 18, 
        United States Code); or
            ``(4) any weapon that is designed to release radiation or 
        radioactivity at a level dangerous to human life.''.
            (2) Sections 101(e)(1)(B), 106(k)(1)(B), and 305(k)(1)(B) 
        of FISA are each amended by striking ``sabotage or 
        international terrorism'' and inserting ``sabotage, 
        international terrorism, or the development or proliferation of 
        weapons of mass destruction''.
    (j) Conforming Amendments to Titles I and III of Fisa to 
Accommodate International Movements of Targets.--
            (1) Section 105(e) of FISA is amended by adding at the end 
        the following new paragraph:
    ``(4) An order issued under this section shall remain in force 
during the authorized period of surveillance notwithstanding the 
absence of the target from the United States, unless the Government 
files a motion to extinguish the order and the court grants the 
motion.''.
            (2) Section 304(d) of FISA is amended by adding at the end 
        the following new paragraph:
    ``(4) An order issued under this section shall remain in force 
during the authorized period of physical search notwithstanding the 
absence of the target from the United States, unless the Government 
files a motion to extinguish the order and the court grants the 
motion.''.

SEC. 10. CONFORMING AMENDMENT TO TABLE OF CONTENTS.

    The table of contents for the Foreign Intelligence Surveillance Act 
of 1978 is amended--
            (1) by striking the item relating to section 102 and 
        inserting the following new item:

``Sec. 102. Electronic surveillance authorization without court order; 
                            certification by attorney general; reports 
                            to congressional committees; transmittal 
                            under seal; duties and compensation of 
                            communication common carrier; applications; 
                            jurisdiction of court.'';
            (2) by striking the items relating to sections 111, 309, 
        and 404; and
            (3) by striking the items related to title VII and section 
        701 and inserting the following:

             ``TITLE VII--ELECTRONIC SURVEILLANCE PROGRAMS

``Sec. 701. Definitions.
``Sec. 702. Foreign intelligence surveillance court jurisdiction to 
                            review electronic surveillance programs.
``Sec. 703. Applications for approval of electronic surveillance 
                            programs.
``Sec. 704. Approval of electronic surveillance programs.
``Sec. 705. Congressional oversight.
                      ``TITLE VIII--EFFECTIVE DATE

``Sec. 801. Effective date.''.
                                                       Calendar No. 635

109th CONGRESS

  2d Session

                                S. 3931

_______________________________________________________________________

                                 A BILL

   To establish procedures for the review of electronic surveillance 
                               programs.

_______________________________________________________________________

                           September 25, 2006

            Read the second time and placed on the calendar