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Title IV of the Intelligence Authorization Act for Fiscal Year 2008

Taken from source document at http://intelligence.senate.gov/070501/bill.pdf on May 5, 2007, 3:10 pm EST


TITLE IV – MATTERS RELATING TO THE FOREIGN INTELLIGENCE
SURVEILLANCE ACT.

SEC. 400. SHORT TITLE
Sections 400 through 414 may be cited as the ‘‘Foreign
Intelligence Surveillance Modernization Act of 2007’’.

SEC. 401. DEFINITIONS.
(a) AGENT OF A FOREIGN POWER.—Subsection (b)(1) of section
101 of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801) is amended—
(1) in subparagraph (B), by striking ‘‘; or’’ and
inserting ‘‘;’’; and
(2) by adding at the end the following:
‘‘(D) is reasonably expected to possess, control,
transmit, or receive foreign intelligence information
while such person is in the United States, provided
that the certification required under section
104(a)(6) or 303(a)(6) contains a description of the
kind of significant foreign intelligence information sought;’’.
(b) ELECTRONIC SURVEILLANCE.—Subsection (f) of such section
is amended to read as follows:
‘‘(f) ‘Electronic surveillance’ means—
‘‘(1) the installation or use of an electronic,
mechanical, or other surveillance device for acquiring
information by intentionally directing surveillance at
a particular, known person who is reasonably believed
to be located within 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, if both the sender and all intended
recipients are reasonably believed to be located
within the United States.’’.
(c) WIRE COMMUNICATION. —Subsection (l) of such section is
amended by striking subsection (l).
(d) MINIMIZATION PROCEDURES.—Subsection (h) of such section
is amended—
(1) in subsection (3) by striking “; and” and
inserting “.”; and
(2) by striking subsection (4).
(e) CONTENTS.—Subsection (n) of such section is amended to
read as follows:
‘‘(n) ‘Contents’, when used with respect to a
communication, includes any information concerning the
substance, purport, or meaning of that
communication.’’

SEC. 402. ATTORNEY GENERAL AUTHORIZATION FOR ELECTRONIC
SURVEILLANCE.
(a) IN GENERAL.—The Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1801 et seq.) is further amended by
striking section 102 and inserting the following:
‘‘AUTHORIZATION FOR ELECTRONIC SURVEILLANCE FOR
FOREIGN INTELLIGENCE PURPOSES
‘‘SEC. 102. (a) IN GENERAL.— Notwithstanding any other
law, the President, acting 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 one year
if the Attorney General—
‘‘(1) certifies in writing under oath that—
‘‘(A) the electronic surveillance is
directed at—
‘‘(i) the acquisition of the contents
of communications of a foreign power,
as defined in paragraph (1), (2), or
(3) of section 101(a); or
‘‘(ii) the acquisition of technical
intelligence, other than the spoken
communications of individuals, from
property or premises under the 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); and
‘‘(2) reports such minimization procedures and
any changes thereto to the Permanent Select
Committee on Intelligence of the House of
Representatives and the Select Committee on
Intelligence of the Senate at least 30 days prior
to the effective date of such minimization
procedures, unless the Attorney General
determines immediate action is required and
promptly notifies the committees of such
minimization procedures and the reason for their
becoming effective immediately.
‘‘(b) MINIMIZATION PROCEDURES.—An electronic
surveillance authorized under this section 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 Permanent Select Committee on
Intelligence of the House of Representatives and the
Select Committee on Intelligence of the Senate under
the provisions of section 108(a).
‘‘(c) SUBMISSION OF CERTIFICATION.—The Attorney
General shall promptly transmit under seal to the
court established under section 103(a) a copy of the
certification under subsection (a)(1). 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—
‘‘(1) an application for a court order with
respect to the surveillance is made under section 104; or
‘‘(2) the certification is necessary to determine
the legality of the surveillance under section 106(f).
‘‘AUTHORIZATION FOR ACQUISITION OF FOREIGN
INTELLIGENCE INFORMATION
‘‘SEC. 102A. (a) IN GENERAL.—Notwithstanding any other
law, the President, acting through the Attorney
General may, for periods of up to one year, authorize
the acquisition of foreign intelligence information
concerning persons reasonably believed to be outside
the United States if the Attorney General certifies in
writing under oath that the Attorney General has
determined that—
‘‘(1) the acquisition does not constitute
electronic surveillance;
‘‘(2) the acquisition involves obtaining the
foreign intelligence information from or with the
assistance of a communications service provider,
custodian, or other person (including any
officer, employee, agent, or other specified
person of such service provider, custodian, or
other person) who has access to 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;
‘‘(3) a significant purpose of the acquisition is
to obtain foreign intelligence information; and
‘‘(4) the minimization procedures to be used with
respect to such acquisition activity meet the
definition of minimization procedures under
section 101(h).
‘‘(b) SPECIFIC PLACE NOT REQUIRED.—A
certification under subsection (a) is not required to
identify the specific facilities, places, premises, or
property at which the acquisition of foreign
intelligence information will be directed.
‘‘(c) SUBMISSION OF CERTIFICATION.—The Attorney
General shall immediately transmit under seal to the
court established under section 103(a) a copy of a
certification made under subsection (a). Such
certification shall be maintained under security
measures established by the Chief Justice of the
United States and 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 section 102B.
‘‘(d) MINIMIZATION PROCEDURES.—An acquisition
under this section may be conducted only in accordance
with the certification of the Attorney General 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 Permanent Select Committee on Intelligence of
the House of Representatives and the Select Committee
on Intelligence of the Senate under section 108(a).
‘‘DIRECTIVES RELATING TO ELECTRONIC SURVEILLANCE AND
OTHER ACQUISITIONS OF FOREIGN INTELLIGENCE INFORMATION
‘‘SEC. 102B. (a) DIRECTIVE.—With respect to an
authorization of electronic surveillance under section
102 or an authorization of an acquisition under
section 102A, the Attorney General may direct a person to—
‘‘(1) immediately provide the Government with all
information, facilities, and assistance necessary
to accomplish the acquisition of foreign
intelligence information in such a manner as will
protect the secrecy of the electronic
surveillance or acquisition 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
electronic surveillance or acquisition or the aid
furnished that such person wishes to maintain.
‘‘(b) COMPENSATION.—The Government shall
compensate, at the prevailing rate, a person for
providing information, facilities, or assistance
pursuant to subsection (a).
‘‘(c) FAILURE TO COMPLY.—In the case of a failure
to comply with a directive issued pursuant to
subsection (a), 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 to comply with the
directive if it finds that the directive was issued in
accordance with subsection (a) and is otherwise
lawful. Failure to obey an order of the court may be
punished by the court as contempt of court. Any
process under this section may be served in any
judicial district in which the person may be found.
‘‘(d) REVIEW OF PETITIONS.—(1) (A) A person
receiving a directive issued pursuant to subsection
(a) may challenge the legality of that directive by
filing a petition with the pool established under
section 103(e)(1).
‘‘(B) The presiding judge designated
pursuant to section 103(b) shall assign a
petition filed under subparagraph (A) 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 of the directive 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 with such directive.
‘‘(3) Any directive not explicitly modified or
set aside under this subsection shall remain in
full effect.
‘‘(e) APPEALS.—The Government or a person
receiving a directive reviewed pursuant to subsection
(d) may file a petition with the Court of Review
established under section 103(b) for review of the
decision issued pursuant to subsection (d) not later
than 7 days after the issuance of such decision. Such
court of review shall have jurisdiction to consider
such petitions and shall provide for the record a
written statement of the reasons for its decision. On
petition for a writ of certiorari by the Government or
any person receiving such directive, the record shall
be transmitted under seal to the Supreme Court, which
shall have jurisdiction to review such decision.
‘‘(f) PROCEEDINGS.—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.
‘‘(g) SEALED PETITIONS.—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.
‘‘(h) LIABILITY.—No cause of action shall lie in
any court against any person for providing any
information, facilities, or assistance in accordance
with a directive under this section.
‘‘(i) RETENTION OF DIRECTIVES AND ORDERS.—A
directive made or an order granted under this section
shall be retained for a period of not less than 10
years from the date on which such directive or such
order is made.’’.
‘‘USE OF INFORMATION ACQUIRED UNDER SECTION 102A
‘‘SEC. 102C. (a) USE OF INFORMATION.—Information
acquired from an acquisition conducted pursuant to
section 102A 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 section 102A. No otherwise
privileged communication obtained in accordance with,
or in violation of, the provisions of section 102A
shall lose its privileged character. No information
from an acquisition pursuant to section 102A may be
used or disclosed by Federal officers or employees
except for lawful purposes.
‘‘(b) NOTIFICATION BY UNITED STATES.—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 a person who was the
target of, or whose communications or activities were
subject to, an acquisition authorized pursuant to
section 102A, any information obtained or derived from
such acquisition, the Government shall, prior to the
trial, hearing, or other proceeding or at a reasonable
time prior to an effort to disclose or so use that
information or submit it in evidence, notify such
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.
‘‘(c) NOTIFICATION BY STATES OR POLITICAL
SUBDIVISION.—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
a person who was the target of, or whose
communications or activities were subject to, an
acquisition authorized pursuant to section 102A, any
information obtained or derived from such acquisition,
the State or political subdivision thereof shall
notify such 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.
‘‘(d) MOTION TO SUPPRESS.—(1) Any person against
whom evidence obtained or derived from an acquisition
authorized pursuant to section 102A 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—
‘‘(A) the information was unlawfully
acquired; or
‘‘(B) the acquisition was not properly made
in conformity with an authorization under
section 102A.
‘‘(2) A person moving to suppress evidence under
paragraph (1) shall make the motion to suppress
the evidence 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.
‘‘(e) IN CAMERA AND EX PARTE REVIEW BY DISTRICT
COURT.—Whenever a court or other authority is notified
pursuant to subsection (b) or (c) of this section, or
whenever a motion is made pursuant to subsection (d)
of this section, or whenever any motion or request is
made pursuant to any other statute or rule of the
United States or any State by a person who was the
target of, or whose communications or activities were
subject to, an acquisition authorized pursuant to
section 102A before any court or other authority of
the United States or any State—
‘‘(1) to discover or obtain applications or
orders or other materials relating to an
acquisition authorized pursuant to section 102A, or
‘‘(2) to discover, obtain, or suppress evidence
or information obtained or derived from an
acquisition authorized pursuant to section 102A,
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 application, order, and such
other materials relating to the acquisition as
may be necessary to determine whether such
acquisition was lawfully authorized and
conducted. In making this determination, the
court may disclose to the person who was the
target of, or whose communications or activities
were subject to, an acquisition authorized
pursuant to section 102A, under appropriate
security procedures and protective orders,
portions of the application, order, or other
materials relating to the acquisition only where
such disclosure is necessary to make an accurate
determination of the legality of the acquisition.
‘‘(f) SUPPRESSION OF EVIDENCE; DENIAL OF MOTION.—
If the United States district court, pursuant to
subsection (e) of this section, determines that an
acquisition authorized pursuant to section 102A was
not lawfully authorized or conducted, it shall, in
accordance with the requirements of law, suppress the
evidence which was unlawfully obtained or derived from
the acquisition or otherwise grant the motion of the
person who was the target of, or whose communications
or activities were subject to, an acquisition
authorized pursuant to section 102A. If the court
determines that such acquisition was lawfully
authorized and conducted, it shall deny the motion of
the person who was the target of, or whose
communications or activities were subject to, an
acquisition authorized pursuant to section 102A except
to the extent that due process requires discovery or
disclosure.
‘‘(g) FINALITY OF ORDERS.—Orders granting motions
or requests under subsection (f) of this section,
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 applications, orders, or other
materials relating to an 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.
‘‘(h) CONSULTATION WITH LAW ENFORCEMENT
OFFICERS.—(1). Federal officers who acquire foreign
intelligence information pursuant to section 102A 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—
‘‘(A) actual or potential attack or other
grave hostile acts of a foreign power or an
agent of a foreign power;

‘‘(B) sabotage, international terrorism, or
the international proliferation of weapons
of mass destruction by a foreign power or an
agent of a foreign power; or
‘‘(C) clandestine intelligence activities by
an intelligence service or network of a
foreign power or by an agent of a foreign power.
‘‘(2) Coordination authorized under paragraph (1)
shall not preclude the certification required by
section 102A.
“(i) PROTECTIVE ORDERS AND PRIVILEGES.—Nothing in
this section shall prevent the United States from
seeking protective orders or asserting privileges
ordinarily available to the United States to protect
against the disclosure of classified information.”.
(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 by inserting after
the item relating to section 102 the following:
‘‘102A. Authorization for acquisition of foreign
intelligence information.
‘‘102B. Directives relating to electronic surveillance
and other acquisitions of foreign intelligence information.
“102C. Use of information acquired under section 102A.”

SEC. 403. JURISDICTION OF FISA COURT.
Section 103 of the Foreign Intelligence Surveillance Act of
1978 (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) by adding at the end the following new subsection:
‘‘(g) Applications for a court order under
section 104 of this title are authorized if the
Attorney General approves such 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.’’.

SEC. 404. 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), by striking ‘‘detailed
description’’ and inserting ‘‘summary
description’’;
(D) in paragraph (6), as redesignated by
subparagraph (B)—
(i) in the matter preceding subparagraph
(A), by striking ‘‘or officials designated’’
and all that follows through ‘‘consent of
the Senate’’ and inserting ‘‘designated by
the President to authorize electronic
surveillance for foreign intelligence
purposes’’;
(ii) in subparagraph (C), by striking
‘‘techniques;’’ and inserting ‘‘techniques; and’’;
(iii) by striking subparagraph (D); and
(iv) by redesignating subparagraph (E) as
subparagraph (D);
(E) in paragraph (7), as redesignated by
subparagraph (B), by striking ‘‘a statement of
the means’’ and inserting ‘‘a summary statement
of the means’’;
(F) in paragraph (8), as redesignated by
subparagraph (B)—
(i) by striking ‘‘a statement’’ and
inserting ‘‘a summary statement’’; and
(ii) by striking ‘‘application;’’ and
inserting ‘‘application; and’’; and
(G) in paragraph (9), as redesignated by
subparagraph (B), by striking “; and” and
inserting “.”
(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), by striking ‘‘or the
Director of National Intelligence’’ and inserting
‘‘the Director of National Intelligence, or the
Director of the Central Intelligence Agency’’.

SEC. 405. ISSUANCE OF AN ORDER.
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 paragraph (1) of subsection (c)—
(A) in subparagraph (D), by striking
‘‘surveillance;’’ and inserting ‘‘surveillance;
and’’;
(B) in subparagraph (E), by striking ‘‘approved;
and’’ and inserting ‘‘approved.’’; and
(C) by striking subparagraph (F).
(3) by striking subsection (d);
(4) by redesignating subsections (e) through (i) as
subsections (d) through (h), respectively;
(5) in subsection (d), as redesignated by paragraph
(4)—
(A) by striking “120 days” and insert “one year”,
and
(B) by amending paragraph (2) to read as follows:
‘‘(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 to exceed one year.’’;
(6) in subsection (e), as redesignated by paragraph
(4), to read as follows:
‘‘(e) Notwithstanding any other provision of this
title, the Attorney General may authorize the
emergency employment of electronic surveillance if the
Attorney General—
‘‘(1) 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;
‘‘(2) determines that the factual basis for issuance
of an order under this title to approve such
electronic surveillance exists;
‘‘(3) informs 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
‘‘(4) makes an application in accordance with this
title to a judge having jurisdiction under section 103
as soon as practicable, but not more than 168 hours
after the Attorney General authorizes such
surveillance. If the Attorney General authorizes such
emergency employment of electronic surveillance, the
Attorney General shall require that the minimization
procedures required by this title for the issuance of
a judicial order be followed. 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 168 hours from
the time of authorization by the Attorney General,
which ever 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 is significant
foreign intelligence information or indicates a threat
of death or serious bodily harm to any person. The
Attorney General shall assess compliance with the
requirements of the prior sentence and shall include
such assessments in the Attorney General’s reports
under section 102(b). A denial of the application made
under this subsection may be reviewed as provided in
section 103.’’;
(7) in subsection (h), as redesignated by paragraph
(4)—
(A) by striking ‘‘a wire or’’ and inserting
‘‘an’’; and
(B) by striking ‘‘physical search’’ and inserting
‘‘physical search or in response to a
certification by the Attorney General or a
designee of the Attorney General seeking
information, facilities, or technical assistance
from such person under section 102B’’; and
(8) by adding at the end the following new subsection:
‘‘(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 1842(d)(2) of this
title; such information shall not be subject to
minimization procedures.’’.

SEC. 406. USE OF INFORMATION.
Section 106 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1806) is amended—
(1) in subsection (i)—
(A) by striking ‘‘radio communication’’ and
inserting ‘‘communication’’; and
(B) by striking ‘‘contents indicates’’ and
inserting ‘‘contents contain significant foreign
intelligence information or indicate’’; and
(2) by inserting after subsection (k) the following”
“(l) PROTECTIVE ORDERS AND PRIVILEGES.—Nothing in
this section shall prevent the United States from
seeking protective orders or asserting privileges
ordinarily available to the United States to protect
against the disclosure of classified information.”.

SEC. 407. WEAPONS OF MASS DESTRUCTION.
(a) DEFINITIONS.—
(1) Subsection (a)(4) of section 101 of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C.
1801(a)(4)) is amended by inserting ‘‘or the
international proliferation of weapons of mass
destruction’’ after ‘‘international terrorism’’.
(2) Subsection (b)(1) of such section (50 U.S.C.
1801(b)(1)) is amended—
(A) in subparagraph (C), by striking ‘‘; or’’ and
inserting ‘‘;’’; and
(B) by adding at the end the following new
subparagraphs:
‘‘(E) engages in the international proliferation
of weapons of mass destruction, or activities in
preparation therefor; or
‘‘(F) 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) Subsection (e)(1)(B) of such section (50 U.S.C.
1801(e)(1)(B)) is amended by striking ‘‘sabotage or
international terrorism’’ and inserting ‘‘sabotage,
international terrorism, or the international
proliferation of weapons of mass destruction’’.
(4) Subsection (l) of such section (50 U.S.C. 1801(l))
is amended to read as follows:
‘‘(l) ‘Weapon of mass destruction’ means—
‘‘(1) any destructive device (as such 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.’’.
(b) USE OF INFORMATION.—
(1) 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) 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’’.

SEC. 408. LIABILITY DEFENSE.
(a) IN GENERAL.—Notwithstanding any other law, and in
addition to the immunities, privileges, and defenses
provided by any other source of law, no action shall lie or
be maintained in any court, and no penalty, sanction, or
other form of remedy or relief shall be imposed by any
court or any other body, against any person for the alleged
provision to an element of the intelligence community of
any information (including records or other information
pertaining to a customer), facilities, or any other form of
assistance, during the period of time beginning on
September 11, 2001, and ending on the date that is the
effective date of this Act, in connection with any alleged
classified communications intelligence activity that the
Attorney General or a designee of the Attorney General
certifies, in a manner consistent with the protection of
State secrets, is, was, would be, or would have been
intended to protect the United States from a terrorist
attack. This section shall apply to all actions, claims, or
proceedings pending on or after the effective date of this Act.
(b) JURISDICTION.—Any action or claim described in
subsection (a) 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 pursuant to section
1441 of title 28, United States Code.
(c) DEFINITIONS.—In this section:
(1) 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)).
(2) PERSON.—The term ‘‘person’’ has the meaning given
the term in section 2510(6) of title 18, United States
Code.

SEC. 409. 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), by striking ‘‘detailed
description’’ and inserting ‘‘summary
description’’;
(D) in paragraph (3)(C), as redesignated by
subparagraph (B), by inserting “or is about to
be” before “owned”;
(E) in paragraph (6), as redesignated by
subparagraph (B)—
(i) in the matter preceding subparagraph
(A), by striking ‘‘or officials’’ and all
that follows through ‘‘consent of the
Senate’’ and inserting ‘‘designated by the
President to authorize physical searches for
foreign intelligence purposes’’;
(ii) in subparagraph (C), by striking
‘‘techniques;’’ and inserting ‘‘techniques; and’’;
(iii) by striking subparagraph (D);
(iv) by redesignating subparagraph (E) as
subparagraph (D); and
(v) in subparagraph (D), as redesignated by
clause (iv), by striking ‘‘certifications
required by subparagraphs (C) and (D)’’ and
inserting ‘‘certification required by
subparagraph (C)’’; and
(F) in paragraph (8), as redesignated by
subparagraph (B), by striking ‘‘a statement’’ and
inserting ‘‘a summary statement’’; 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 such Act (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), by inserting “or is about to
be” before “owned”;
(2) in subsection (e), to read as follows:
‘‘(e) Notwithstanding any other provision of this
title, the Attorney General may authorize the
emergency employment of a physical search if the
Attorney General—
‘‘(1) 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;
‘‘(2) determines that the factual basis for
issuance of an order under this title to approve
such physical search exists;
‘‘(3) informs a judge having jurisdiction under
section 103 at the time of such authorization
that the decision has been made to employ an
emergency physical search; and
‘‘(4) makes an application in accordance with
this title to a judge having jurisdiction under
section 103 as soon as practicable, but not more
than 168 hours after the Attorney General
authorizes such physical search. If the Attorney
General authorizes such emergency employment of a
physical search, the Attorney General shall
require that the minimization procedures required
by this title for the issuance of a judicial
order be followed. 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 168 hours from the time of
authorization by the Attorney General, whichever
is earliest. 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 is significant foreign
intelligence information or indicates a threat of
death or serious bodily harm to any person. The
Attorney General shall assess compliance with the
requirements of the prior sentence and shall
include such assessments in the Attorney
General’s reports under section 302(a)(2). A
denial of the application made under this
subsection may be reviewed as provided in section 103.’’.
(c) CONFORMING AMENDMENTS.—The Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is
further amended—
(1) in section 304(a)(5), 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)’’.

SEC. 410. AMENDMENTS FOR EMERGENCY PEN REGISTERS AND TRAP
AND TRACE DEVICES.
(a) 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 “168 hours”; and
(2) in subsection (c)(1)(C) by striking “48 hours” and
inserting “168 hours”.
SEC. 411. MANDATORY TRANSFER FOR REVIEW.
(a) IN GENERAL.—In any case before any court
challenging the legality of a classified communications
intelligence activity relating to a foreign threat, or in
which the legality of any such activity is in issue, if the
Attorney General files an affidavit under oath that the
case should be transferred to the Foreign Intelligence
Surveillance Court because further proceedings in the
originating court would harm the national security of the
United States, the originating court shall transfer the
case to the Foreign Intelligence Surveillance Court for
further proceedings under this section.
(b) PROCEDURES FOR REVIEW.—The Foreign Intelligence
Surveillance Court shall have jurisdiction as appropriate
to determine standing and the legality of the
communications intelligence activity 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)
of the Foreign Intelligence Surveillance Act of 1978,
except that the Foreign Intelligence Surveillance Court
shall not require the disclosure of national security
information to any person without the approval of the
Director of National Intelligence or the Attorney General,
unless in the context of a criminal proceeding, disclosure
would be constitutionally required. Any such
constitutionally required disclosure shall be governed by
the Classified Information Procedures Act, Pub. L. No. 96-99
456, 94 Stat. 2025 (1980), or if applicable, Title 18,
United States Code, Section 2339B(f).
(c) APPEAL, CERTIORARI, AND EFFECTS OF DECISIONS.—The
decision of the Foreign Intelligence Surveillance Court
made under paragraph (b), including a decision that the
disclosure of national security information is
constitutionally required, shall be subject to review by
the Court of Review established under section 103(b) of the
Foreign Intelligence Surveillance Act. The Supreme Court of
the United States shall have jurisdiction to review
decisions of the 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.
(d) DISMISSAL.—The Foreign Intelligence Surveillance Court
or a court that is an originating court under paragraph (a)
may dismiss a challenge to the legality of a classified
communications intelligence activity for any reason
provided for under law.
(e) PRESERVATION OF LITIGATION PRIVILEGES.—All litigation
privileges shall be preserved in the originating court and
in the Foreign Intelligence Surveillance Court, the Foreign
Intelligence Court of Review, and the Supreme Court of the
United States, in any case that is transferred and received
under this section.

SEC. 412. TECHNICAL AND CONFORMING AMENDMENTS.
The Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.) is further amended—
(1) in section 103(e)—
(A) in paragraph (1), by striking ‘‘501(f)(1)’’
and inserting ‘‘102B(d) or 501(f)(1)’’; and
(B) in paragraph (2), by striking ‘‘501(f)(1)’’
and inserting ‘‘102B(d) or 501(f)(1)’’;
(2) in section 105—
(A) in subsection (a)(4), as redesignated by
section 105(1)(B)—
(i) by striking ‘‘104(a)(7)(E)’’ and
inserting ‘‘104(a)(6)(D)’’; and
(ii) by striking ‘‘104(d)’’ and inserting ‘‘104(c)’’;
(B) in subsection (c)(1)(A), by striking
‘‘104(a)(3)’’ and inserting ‘‘104(a)(2)’’;
(3) in section 106—
(A) in subsection (j), in the matter preceding
paragraph (1), by striking ‘‘105(e)’’ and
inserting ‘‘105(d)’’; and
(B) in subsection (k)(2), by striking
‘‘104(a)(7)(B)’’ and inserting ‘‘104(a)(6)(B)’’; and
(4) in section 108(a)(2)(C), by striking ‘‘105(f)’’
and inserting ‘‘105(e)’’.

SEC. 413. EFFECTIVE DATE.
(a) Except as otherwise provided, the amendments made by
this Act shall take effect 90 days after the date of the
enactment of this Act.
(b) Notwithstanding any other provision of this Act, any
order in effect on the date of enactment of this Act issued
pursuant to the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1801 et seq.) shall remain in effect until
the date of expiration of such order, and, at the request
of the applicant, the court established under section 103
(a) of such Act (50 U.S.C. 1803(a)) may reauthorize such
order as long as the facts and circumstances continue to
justify issuance of such order under the provisions of the
Foreign Intelligence Surveillance Act of 1978, as in effect
on the day before the applicable effective date of this
Act. The court established under section 103(a) of such Act
shall extinguish any such order at the request of the applicant.