H.R.3773 - FISA Amendments Act of 2008110th Congress (2007-2008)
Summary: H.R.3773 — 110th Congress (2007-2008)
House agreed to Senate amendment with amendment (03/14/2008)
Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 or FISA Amendments Act of 2008 - Title I: Foreign Intelligence Surveillance - (Sec. 101) Amends the Foreign Intelligence Surveillance Act of 1978 (FISA) to add a new title concerning additional procedures for acquiring the communications of certain persons outside the United States.
Authorizes the Attorney General (AG) and Director of National Intelligence (DNI) to jointly authorize, for periods up to one year, the targeting (electronic surveillance) of persons located outside the United States in order to acquire foreign intelligence information, under specified limitations, including: (1) prohibiting an acquisition intentionally targeting a person reasonably believed to be outside the United States in order to acquire the communications of a specific person reasonably believed to be located in the United States, unless done in accordance with titles I or III of FISA; and (2) requiring the targeting to be conducted in a manner consistent with the fourth amendment to the Constitution. Requires: (1) certain targeting and minimization procedures to be followed; (2) the AG to adopt guidelines to ensure that such limitations and procedures are followed, including criteria for determining whether a significant targeting purpose is to acquire the communications of a person located in the United States; (3) the DNI to establish a training program for intelligence community (IC) personnel carrying out the guidelines adopted by the AG; (4) the AG to submit such guidelines to the congressional intelligence committees and the Foreign Intelligence Surveillance Court (Court) for review; and (5) prior to such targeting, a certification by the AG and DNI as to the necessity of such targeting and that appropriate procedures and limitations will be followed. Allows the AG and DNI, if immediate targeting is determined to be required due to an emergency situation, to commence such targeting, but to submit the certification within seven days of such determination. Requires all certifications to be submitted to the Court for review.
Authorizes the AG and DNI to direct an electronic communication service provider to: (1) immediately provide the government with all information, facilities, and assistance necessary to accomplish an acquisition; and (2) maintain under security procedures any records concerning such acquisition. Outlines legal procedures with respect to directive challenges, standards for review, enforcement, and appeals. Provides for: (1) judicial review of certifications and targeting and minimization procedures; and (2) review of Court rulings by the Foreign Intelligence Surveillance Court of Review (with certiorari to the Supreme Court). Outlines conditions under which the AG and DNI may, through the Court: (1) replace a targeting acquisition already in effect before the enactment of this Act with an acquisition authorized under this Act; or (2) reauthorize a current acquisition under the procedures and guidelines of this Act. Requires Court maintenance and security of records and proceedings with respect to acquisition applications, orders, and determinations.
Requires the AG and DNI, at least every six months, to: (1) assess compliance with required targeting and minimization procedures; and (2) submit assessment results to the Court and the intelligence and judiciary committees. Authorizes inspectors general of the Department of Justice (DOJ) and elements of the IC authorized to acquire foreign intelligence information to review their agency or element's compliance with such procedures and guidelines and provide review results to the Court, the AG, the DNI, and the intelligence and judiciary committees. Requires the head of any IC element conducting an acquisition of foreign intelligence information to annually review such acquisitions and report review results to the Court, the AG, the DNI, and the intelligence and judiciary committees.
Provides Court jurisdiction for approving the targeting of a U.S. person located outside the United States when the acquisition of information is conducted within the United States. Requires an application for such acquisition to be made by a federal officer (and approved by the AG), and to contain certain requirements, including that the target is believed to be a foreign power or agent, officer, or employee of a foreign power. Provides for judicial review of a Court order approving such an acquisition. Makes approval orders effective for 90 days, with authorized 90-day renewals. Allows the AG to authorize an emergency acquisition of such a target under certain circumstances, including: (1) determining that an emergency exists; (2) informing a Court judge of such determination; and (3) applying within seven days for a Court order authorizing such surveillance. Provides similar Court jurisdiction and outlines similar procedures for the acquisition (and emergency acquisition) of a physical search.
Authorizes the: (1) joint applications and concurrent approvals of requests for acquisitions proposed to be conducted both inside and outside the United States; and (2) concurrent authorizations of electronic surveillance and physical searches.
Directs the AG to report semiannually to the intelligence and judiciary committees concerning the implementation of acquisition requirements.
(Sec. 102) States that, other than by express statutory authorization, FISA and the procedures of chapters 119 (Wire and Electronic Communications Interception and Interception of Oral Communications), 121 (Stored Wire and Electronic Communications and Transactional Records Access), and 206 (Pen Registers and Trap and Trace Devices) of the federal criminal code shall be the exclusive means by which electronic surveillance and the interception of domestic wire, oral, or electronic communications may be conducted.
(Sec. 103) Requires the AG to submit semiannually to the intelligence committees copies of any orders of the Court or the Foreign Intelligence Surveillance Court of Review that include significant construction or interpretation of FISA, including any such orders issued during the five-year period before the enactment of this Act. Allows for the redaction of submitted materials for the protection of national security.
(Sec. 104) Revises provisions concerning the application for, and issuance of, Court orders, including provisions concerning paperwork requirements and government officials who may authorize FISA actions.
(Sec. 105) Allows the AG to authorize the emergency employment of electronic surveillance if the AG, among other things: (1) determines that an emergency exists; (2) informs a Court judge of such determination; and (3) applies for a Court order authorizing such surveillance.
(Sec. 107) Provides similar revisions and outlines similar procedures as in sections 104 and 105 above for the emergency employment of physical searches.
(Sec. 108) Requires the AG, after authorizing the installation and use of a pen register or trap and trace device on an emergency basis, to apply to the Court for an authorization order within seven days (current law requires 48 hours) after the emergency installation and use.
(Sec. 109) Authorizes the Court to sit en banc when: (1) necessary to secure or maintain uniformity of Court decisions; or (2) the proceeding involves a question of exceptional importance.
(Sec. 110) Directs the inspectors general of DOJ, the Office of the DNI, the National Security Agency (NSA), and any other IC element that participated in the President's Surveillance Program (a program authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007, and including the program commonly known as the Terrorist Surveillance Program) to: (1) conduct a review of, among other things, the establishment, implementation, product, and use of the product of the Program; and (2) provide an interim and final review report to the intelligence and judiciary committees. Allows for, in conjunction with such reviews, expedited security clearances and the hiring of necessary additional personnel.
(Sec. 111) Authorizes the acquisition of foreign intelligence information from an entity not substantially composed of U.S. persons that is engaged in the international proliferation of weapons of mass destruction.
(Sec. 112) Provides a ten-year statute of limitations with respect to offenses under FISA.
Title II: Protection of Persons Assisting the Government - (Sec. 201) Directs the court concerned to permit the government to intervene in a federal or state civil suit against any person (including an electronic communication service provider or a landlord or custodian) providing surveillance assistance requested by an IC element. Allows any party (including the intervening party) to submit evidence with respect to which a privilege based on state secrets or other classified information is asserted. Requires such court to review, and act appropriately on, such evidence. Requires that, in any action alleging that a person provided such assistance during the period between September 11, 2001, and January 17, 2007, the AG provide to such court any assistance request or directive related to the allegations.
Title III: Commission on Warrantless Electronic Surveillance Activities - (Sec. 301) Establishes in the legislative branch the Commission on Warrantless Electronic Surveillance Activities to examine, and report to the President and Congress on, all intelligence collection programs and activities inside the United States or regarding U.S. persons in effect as of and since September 11, 2001. Requires the protection of national security in the carrying out of Commission duties. Authorizes the Commission to submit interim reports. Terminates the Commission 60 days after its final report. Authorizes appropriations.
Title IV: Other Provisions - (Sec. 401) Provides severability protections for this Act and its amendments.
(Sec. 403) Repeals FISA provisions made inconsistent by provisions of this Act.
(Sec. 404) Outlines transition procedures.
(Sec. 405) States that this Act and its amendments shall not be construed to prohibit surveillance of, or grant any rights to, an alien not permitted to be or remain in the United States.
(Sec. 406) States that this Act and its amendments shall not be construed to prohibit the IC from conducting lawful surveillance necessary to: (1) prevent Osama bin Laden, al Qaeda, or any other terrorist or terrorist organization from attacking the United States, any U.S. person, or any U.S. ally; (2) ensure the safety and security of U.S. Armed Forces, or any other officer or employee of the government involved in protecting U.S. national security; or (3) protect the United States, any U.S. person, or any U.S. ally from threats posed by weapons of mass destruction or other threats to national security.