Order Code RL32608
CRS Report for Congress
Received through the CRS Web
Foreign Intelligence Surveillance Act:
Selected Legislation
from the 108th Congress
Updated September 30, 2004
Elizabeth B. Bazan
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

Foreign Intelligence Surveillance Act: Selected 108th
Congress Legislation
Summary
The Foreign Intelligence Surveillance Act, 50 U.S.C. § 1801 et seq., (FISA) as
passed in 1978, provided a statutory framework for the use of electronic surveillance
in the context of foreign intelligence gathering. In so doing, Congress sought to
strike a delicate balance between national security interests and personal privacy
rights. Subsequent legislation expanded federal laws dealing with foreign
intelligence gathering to address physical searches, pen registers and trap and trace
devices, and access to certain business records. The Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism (USA PATRIOT) Act of 2001, P.L. 107-56, made significant changes to
some of these provisions. Further amendments to FISA were included in the
Intelligence Authorization Act for Fiscal Year 2002, P.L. 107-108, and the Homeland
Security Act of 2002, P.L. 107-296. In addressing international terrorism or
espionage, the same factual situation may be the focus of both criminal investigations
and foreign intelligence collection efforts. The changes in FISA under these public
laws facilitate information sharing between law enforcement and intelligence
elements. In its Final Report, the 9/11 Commission noted that the removal of the pre-
9/11 “wall” between intelligence and law enforcement “has opened up new
opportunities for cooperative action within the FBI.”
In the 108th Congress, a variety of bills have been introduced with provisions
related to the FISA. The FISA provisions of some of these measures are part of
larger intelligence reform proposals. Some of these pre-dated the release of The 9/11
Commission Report, Final Report of the National Commission on Terrorist Attacks
upon the United States
(W. W. Norton 2004) (Final Report), while others have
emerged since the release of the Final Report. Still others are more narrowly focused
measures that would also impact FISA investigations in the post-9/11 environment.
This report will briefly discuss the FISA-related aspects of these proposals. For
purposes of this report, the bills addressed will be divided generally into two
categories: intelligence reform or reorganization proposals that have FISA
provisions, including H.R. 10, H.R. 4104, H.R. 5040, H.R. 5150, S. 6, S. 190, S.
1520, S. 2811, S. 2840, S. 2845, and Senator Pat Roberts’ draft bill; and other FISA-
related bills, including H.R. 1157, H.R. 2242, H.R. 2429, H.R. 2800, H.R. 3179,
H.R. 3352, H.R. 3552, H.R. 4591, H.Amdt. 652 to H.R. 4574, S. 113, S. 123, S. 410,
S. 436, S. 578, S. 1158, S. 1507, S. 1552, S. 1709, S. 2528, and S.Amdt. 536 to S.
113. For a more detailed discussion of FISA, see CRS Report RL30465, The
Foreign Intelligence Surveillance Act: An Overview of the Statutory Framework and
Recent Judicial Decisions
, by Elizabeth B. Bazan.

Contents
FISA Provisions which are Part of Intelligence Reform or Reorganization
Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Other FISA-Related Bills in the 108th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Foreign Intelligence Surveillance Act:
Selected 108th Congress Legislation
The Foreign Intelligence Surveillance Act, 50 U.S.C. § 1801 et seq.,
(FISA) as passed in 1978, provided a statutory framework for the use of electronic
surveillance in the context of foreign intelligence gathering. In so doing, Congress
sought to strike a delicate balance between national security interests and personal
privacy rights. Subsequent legislation expanded federal laws dealing with foreign
intelligence gathering to address physical searches, pen registers and trap and trace
devices, and access to certain business records. The Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism (USA PATRIOT) Act of 2001, P.L. 107-56, made significant changes to
some of these provisions. Further amendments to FISA were included in the
Intelligence Authorization Act for Fiscal Year 2002, P.L. 107-108, and the Homeland
Security Act of 2002, P.L. 107-296. In addressing international terrorism or
espionage, the same factual situation may be the focus of both criminal investigations
and foreign intelligence collection efforts. The changes in FISA under these public
laws facilitate information sharing between law enforcement and intelligence
elements. In its Final Report , the 9/11 Commission noted that the removal of the
pre-9/11 “wall” between intelligence and law enforcement “has opened up new
opportunities for cooperative action within the FBI.”1
In the 108th Congress, a variety of bills have been introduced with provisions
related to the FISA. The FISA provisions of some of these measures are part of
larger intelligence reform proposals. Some of these pre-dated the release of The 9/11
Commission Report, Final Report of the National Commission on Terrorist Attacks
Upon the United States
(W. W. Norton 2004) (Final Report), while others have
emerged since the release of the Final Report. Still others are more narrowly focused
measures that would also impact FISA investigations in the post-9/11 environment.
This report will briefly discuss these proposals. For purposes of this report, the bills
addressed will be divided generally into two categories: intelligence reform or
reorganization proposals that have FISA provisions and other FISA-related bills. For
a more detailed discussion of FISA, see CRS Report RL30465, The Foreign
Intelligence Surveillance Act: An Overview of the Statutory Framework and Recent
Judicial Decisions
, by Elizabeth B. Bazan.
1 The 9/11 Commission Report, Final Report of the National Commission on Terrorist
Attacks upon the United States
, Ch. 13, Sec. 13.5, at 424 (W. W. Norton 2004) (Final
Report
).

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FISA Provisions which are Part of Intelligence
Reform or Reorganization Proposals
While not all of the intelligence reform or reorganization proposals introduced
in the 108th Congress have addressed FISA, a number have FISA provisions,
including:
H.R. 10. 9/11 Recommendations Implementation Act. Introduced by Representative
J. Dennis Hastert on September 24, 2004, and referred to House Permanent Select
Committee on Intelligence, and in addition to the House Committees on Armed
Services, Education and the Workforce, Energy and Commerce, Financial Services,
Government Reform, International Relations, the Judiciary, Rules, Science,
Transportation and Infrastructure, Ways and Means, and Select Committee on
Homeland Security, for a period to be subsequently determined by the Speaker, in
each case for consideration of such provisions as fall within the jurisdiction of the
committee concerned. Sec. 1011 of the bill, among other things, creates a new Sec.
102A of the National Security Act of 1947, dealing with the responsibilities and
authorities of the newly created National Intelligence Director. Sec. 102A(f) states,
in pertinent part, that “Nothing in this act shall be construed as affecting the role of
the Department of Justice or the Attorney General with respect to applications under
the Foreign Intelligence Surveillance Act.” Under Sec. 1071(e) of the measure,
“Director of Central Intelligence” is replaced with “National Intelligence Director”
in each place in which it appears in FISA. Sec. 2001 of the bill as introduced would
amend Sec. 101(b)(1) of FISA, 50 U.S.C. § 1801(b)(1), to add to the list of categories
of persons, other than U.S. persons, who are considered “agents of a foreign power”
for purposes of FISA. Under Sec. 2001 as introduced, any person, other than a U.S.
person, who “engages in international terrorism or activities in preparation therefor”
would be considered an agent of a foreign power. This language would not require
the government to establish that the person was connected with an international
terrorist organization, foreign government or group. During mark-up of H.R. 10 by
the House Judiciary Committee, an amendment offered by Representative Howard
Berman was agreed to by voice vote which would replace Sec. 2001 as introduced
with a new Sec. 2001. The new language would create a new Sec. 101A of FISA, 50
U.S.C. § 1801A, which would provide, “Upon application by the Federal official
applying for an order under this Act, the court may presume that a non-United States
person who is knowingly engaged in sabotage or international terrorism, or activities
that are in preparation therefor, is an agent of a foreign power under section
101(b)(2)(C).” The amendment would also make the new language subject to the
sunset provision in Sec. 224 of the USA PATRIOT Act, P.L.107-56, including the
exception provided in subsection (b) of Sec. 224. Therefore, Sec. 2001 as amended
would sunset on December 31, 2005, except with respect to any foreign intelligence
investigation begun before that date or any criminal offense or potential offense that
began or occurred before that date.
H.R. 4104. Intelligence Transformation Act of 2004. Introduced April 1, 2004, by
Representative Jane Harman, and referred to House Permanent Select Committee on
Intelligence. Sec. 101 of the bill would, in pertinent part, amend the National
Security Act of 1947 to strike the existing Section 103 of the act and replace it with
new language. Under new Section 103(b)(6), a newly created Director of National

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Intelligence would have responsibility to “establish requirements and priorities for
foreign intelligence information to be collected under [FISA] and provide assistance
to the Attorney General to ensure that information derived from electronic
surveillance or physical searches under that act is disseminated so it may be used
efficiently and effectively for foreign intelligence purposes, except that the Director
shall have no authority to direct, manage, or undertake electronic surveillance or
physical search operations pursuant to that act unless otherwise authorized by statute
or Executive order.” Under Sec. 502 of H.R. 4104, “Director of Central Intelligence”
is to be replaced with “Director of National Intelligence” in each place in FISA in
which it appears.
H.R. 5040. 9/11 Commission Report Implementation Act of 2004. Introduced
September 9, 2004, by Representative Christopher Shays, and referred to House
Permanent Select Committee on Intelligence, and in addition to the House
Committees on Armed Services, International Relations, Government Reform,
Judiciary, Rules, Transportation and Infrastructure, Energy and Commerce, Ways and
Means, and House Select Committee on Homeland Security, for a period to be
subsequently determined by the Speaker, in each case for consideration of such
provisions as fall within the jurisdiction of the committee concerned. Under Sec.
132(a)(6), the National Intelligence Director established by the bill would have
responsibility to “establish requirements and priorities for foreign intelligence
information to be collected under [FISA], and provide assistance to the Attorney
General to ensure that information derived from electronic surveillance or physical
searches under that act is disseminated so that it may be used efficiently and
effectively for foreign intelligence purposes, except that the Director shall have no
authority to direct, manage, or undertake electronic surveillance or physical search
operations pursuant to that act unless otherwise authorized by statute or Executive
order.” Under Sec. 172(e) of the bill, “National Intelligence Director” is to replace
“Director of Central Intelligence” in every place where it appears in FISA.
H.R. 5150.2 National Intelligence Reform Act of 2004. Introduced September 24,
2004, by Representative Christopher Shays, for himself and Representative Carolyn
Maloney, and referred to the House Permanent Select Committee on Intelligence. In
Sec. 112(a)(7) of the bill, a newly established National Intelligence Director would
have responsibility “to establish requirements and priorities for foreign intelligence
information to be collected under [FISA], and provide assistance to the Attorney
General to ensure that information derived from electronic surveillance or physical
searches under that act is disseminated so that it may be used efficiently and
effectively for foreign intelligence purposes, except that the Director shall have no
authority to direct, manage, or undertake electronic surveillance or physical search
operations pursuant to that act unless otherwise authorized by statute or Executive
order.” Under Sec. 302(e) of the bill, “National Intelligence Director” would replace
“Director of Central Intelligence” in each place in which it appears in FISA.
2 The Government Printing Office version of this bill was unavailable at the time this report
was prepared. This discussion is taken from the prepublication version of the bill as
a v a i l a b l e o n t h e G P O w e b s i t e o n S e p t e m b e r 2 7 , 2 0 0 4 , a t
[http://www.congress.gov/billtext/househtml/hr5150.ih.html].

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S. 6. Comprehensive Homeland Security Act of 2003. Introduced January 7, 2003,
by Senator Thomas Daschle, and referred to Senate Committee on the Judiciary.
Under Sec. 10002 of the bill, a new Sec.103(b)(6) of the National Security Act of
1947, a newly established Director of National Intelligence would have the
responsibility “to establish requirements and priorities for foreign intelligence
information to be collected under [FISA], and provide assistance to the Attorney
General to ensure that information derived from electronic surveillance or physical
searches under that act is disseminated so that it may be used efficiently and
effectively for foreign intelligence purposes, except that the Director shall have no
authority to direct, manage, or undertake electronic surveillance or physical search
operations pursuant to that act unless otherwise authorized by statute or Executive
order.” Pursuant to Sec. 10005(f), “Director of Central Intelligence” would be
replaced with “Director of National Intelligence” in every place it appears in FISA.
S. 190. Intelligence Community Leadership Act of 2003. Introduced January 16,
2003, by Senator Dianne Feinstein, and referred to the Senate Select Committee on
Intelligence. Section 2 of the bill would replace the existing Sec. 103 of the National
Security Act of 1947 with a new Sec. 103, subsection 103(b)(6) of which would give
the new Director of National Intelligence responsibility “to establish requirements
and priorities for foreign intelligence information to be collected under [FISA], and
provide assistance to the Attorney General to ensure that information derived from
electronic surveillance or physical searches under that act is disseminated so that it
may be used efficiently and effectively for foreign intelligence purposes, except that
the Director shall have no authority to direct, manage, or undertake electronic
surveillance or physical search operations pursuant to that act unless otherwise
authorized by statute or Executive order.” Under Sec. 4(f) of the bill, “Director of
Central Intelligence” would be replaced with “Director of National Intelligence” in
each place in FISA in which it appears.
S. 1520. 9-11 Memorial Intelligence Reform Act. Introduced July 31, 2003, by
Senator Bob Graham, and referred to the Senate Select Committee on Intelligence.
Sec. 2 of the bill would create a new Sec. 103 of the National Security Act of 1947.
Under the new Sec. 103(b)(6), the newly established Director of National Intelligence
would have responsibility to “establish requirements and priorities for foreign
intelligence information to be collected under [FISA], and provide assistance to the
Attorney General to ensure that information derived from electronic surveillance or
physical searches under that act is disseminated so that it may be used efficiently and
effectively for foreign intelligence purposes, except that the Director shall have no
authority to direct, manage, or undertake electronic surveillance or physical search
operations pursuant to that act unless otherwise authorized by statute or Executive
order.” Section 8(a)(1) of the bill would direct the Attorney General, in consultation
with the Director of the FBI, to “provide detailed training to appropriate personnel
of the FBI, and to appropriate personnel of other elements of the intelligence
community, on the availability and utilization of the authorities provided by [FISA]
to address terrorist threats to the United States.” Section 8(b) requires the Attorney
General and the Director of the FBI to “jointly take appropriate actions to ensure that
the information acquired through electronic surveillance, searches, and other
activities under [FISA] is disseminated on a timely basis to appropriate personnel
within the [FBI], and appropriate personnel in other elements of the intelligence
community, in order to facilitate the use of such information for analysis and

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operations to address terrorists threats to the United States.” Under Section 8(c), the
Attorney General and the Director of the FBI must “jointly develop a plan to utilize
the authorities under [FISA] to provide for the full assessment of the threats posed
to the United States by international terrorist groups operating within the United
States, including the determination of the extent to which such groups are funded or
otherwise supported by foreign governments.” In the context of enhanced
counterterrorism training for intelligence community personnel, Subsections
10(1)(A) and (C) of the bill direct the Director of National Intelligence to expand
such training to improve and enhance (A) “intelligence sharing between and among
intelligence personnel and law enforcement personnel; . . . [and] (C) the utilization
of the authorities under [FISA].”
S. 2811. Intelligence Reformation Act of 2004 or 9/11 Act. Introduced September
15, 2004, by Senator Arlen Specter, and referred to Senate Committee on
Governmental Affairs. Under Sec. 132(a)(5), the newly established Director of
Intelligence has responsibility “to establish requirements and priorities for foreign
intelligence information to be collected under [FISA], and provide assistance to the
Attorney General to ensure that information derived from electronic surveillance or
physical searches under that act is disseminated so that it may be used efficiently and
effectively for foreign intelligence purposes, except that the Director shall have no
authority to direct, manage, or undertake electronic surveillance or physical search
operations pursuant to that act unless otherwise authorized by statute or Executive
order.” Under Sec. 402(e), “Director of Intelligence is to replace “Director of Central
Intelligence” in each place it appears in FISA.
S. 2840. National Intelligence Reform Act of 2004. Introduced September 23, 2004,
by Senator Susan Collins, reporting an original bill from the Committee on
Governmental Affairs. In Sec. 112, the bill outlines the responsibilities of the new
National Intelligence Director. In Sec. 112(a)(7), the Director is given responsibility
“to establish requirements and priorities for foreign intelligence information to be
collected under [FISA], and provide assistance to the Attorney General to ensure that
information derived from electronic surveillance or physical searches under that act
is disseminated so that it may be used efficiently and effectively for foreign
intelligence purposes, except that the Director shall have no authority to direct,
manage, or undertake electronic surveillance or physical search operations pursuant
to that act unless otherwise authorized by statute or Executive order.” Under Sec.
302(e) of the bill, “National Intelligence Director” replaces “Director of Central
Intelligence” in each place in which it appears in FISA.
S. 2845. National Intelligence Reform Act of 2004. Introduced September 23, 2004,
by Senator Susan Collins, for herself and Senator Joseph Lieberman, reporting an
original bill from the Committee on Governmental Affairs. In Sec. 112, the bill
outlines the responsibilities of the new National Intelligence Director. In Sec.
112(a)(7), the Director is given responsibility “to establish requirements and
priorities for foreign intelligence information to be collected under [FISA], and
provide assistance to the Attorney General to ensure that information derived from
electronic surveillance or physical searches under that act is disseminated so that it
may be used efficiently and effectively for foreign intelligence purposes, except that
the Director shall have no authority to direct, manage, or undertake electronic
surveillance or physical search operations pursuant to that act unless otherwise

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authorized by statute or Executive order.” Under Sec. 302(e) of the bill, “National
Intelligence Director” replaces “Director of Central Intelligence” in each place in
which it appears in FISA.
Senator Pat Roberts’ Draft Bill, dated August 23, 2004. 9-11 National Security
Protection Act. Sec. 102 of the bill would create a new Sec. 102A of the National
Security Act of 1947. Under Sec. 102A(b)(8), the newly established National
Intelligence Director would have responsibility “to establish requirements and
priorities for foreign intelligence information to be collected under [FISA], and
provide assistance to the Attorney General to ensure that information derived from
electronic surveillance or physical searches under that act is disseminated so that it
may be used efficiently and effectively for foreign intelligence purposes, except that
the Director shall have no authority to direct, manage, or undertake electronic
surveillance or physical search operations pursuant to that act unless otherwise
authorized by statute or Executive order.” Under Sec. 221(e) of the bill, “National
Intelligence Director” would replace “Director of Central Intelligence” in each place
where it appears in FISA.
Other FISA-Related Bills in the 108th Congress
The FISA-related measures which do not involve intelligence reform or
reorganization appear to be more varied in their focus and approach. These include
the following bills:
H.R. 1157. Freedom to Read Protection Act. A bill to amend the Foreign
Intelligence Surveillance Act to exempt bookstores and libraries from orders
requiring the production of any tangible things for certain foreign intelligence
investigations, and for other purposes. Introduced on March 6, 2003, by
Representative Bernard Sanders. Referred to House Judiciary Committee and the
House Permanent Select Committee on Intelligence for a period to be subsequently
determined by the Speaker, in each case for consideration of such provisions as fall
within the jurisdiction of the committee concerned, on March 6, 2003. Referred to
the Subcommittee on Crime, Terrorism, and Homeland Security of the House
Judiciary Committee on May 5, 2003. Among other things, Sec. 2 of the bill amends
Section 501 of FISA, 50 U.S.C. § 1861, to preclude an application for an order
seeking or having the effect of searching for or seizing records of a bookseller or
library documentary materials concerning personally identifiable information
regarding a patron of the library or bookstore. It does not preclude a physical search
for such documentary materials under another provision of law. Sec. 3 of the bill
amends 50 U.S.C. § 1862, with respect to reporting requirements for the Attorney
General to make to the House Judiciary Committee, Senate Judiciary Committee,
House Permanent Select Committee on Intelligence and Senate Committee on
Intelligence. Also requires the Attorney General, consistent with protection of U.S.
national security, to make public the information reported to these committees.
H.R. 2242. Tribal Government Amendments to the Homeland Security Act. A bill
to amend the Homeland Security Act of 2002 to include Indian tribes among the
entities consulted with respect to activities carried out by the Secretary of Homeland
Security and for other purposes. Introduced on May 22, 2003, by Representative

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Patrick J. Kennedy. On May 22, 2003, referred to the Committee on Resources and,
in addition, to the House Committee on the Judiciary, the House Committee on the
Budget, the House Permanent Select Committee on Intelligence, and the House
Select Committee on Homeland Security, for a period to be subsequently determined
by the Speaker, in each case for consideration of such provisions as fall within the
jurisdiction of the committee concerned. Referred to the Subcommittee on Crime,
Terrorism, and Homeland Security of the House Judiciary Committee on June 25,
2003. Sec. 12(g)(1) would amend Section 106(k)(1) of FISA, 50 U.S.C. §
1806(k)(1), to permit federal officers who conduct electronic surveillance to acquire
foreign intelligence information under FISA to consult, among others, with law
enforcement personnel of an Indian tribe. Sec. 12(g)(2) would also amend Section
305(k)(1) of FISA, 50 U.S.C. § 1825(k)(1), to permit federal officers who conduct
a physical search under FISA to consult, among others, with law enforcement
personnel of an Indian Tribe.
H.R. 2429. Surveillance Oversight and Disclosure Act of 2003. A bill to amend the
Foreign Intelligence Surveillance Act of 1978 to improve the administration and
oversight of foreign intelligence surveillance, and for other purposes. Introduced
on June 11, 2003, by Representative Joseph M. Hoeffel. On June 11, 2003, referred
to the House Judiciary Committee, the House Permanent Select Committee on
Intelligence, and the House Financial Services Committee, for a period to be
subsequently determined by the Speaker, in each case for consideration of such
provisions as fall within the jurisdiction of the committee concerned. Referred to the
Subcommittee on Financial Institutions and Consumer Credit of House Committee
on Financial Services for a period to be subsequently determined by the Chairman,
on June 23, 2003. Referred to Subcommittee on Commercial and Administrative
Law of House Judiciary Committee on June 25, 2003. Among other things,
authorizes Foreign Intelligence Surveillance Court (FISC) and Foreign Intelligence
Court of Review (Court of Review) to establish rules and procedures and to take
actions necessary to administer FISA. Requires reporting of such rules and
procedures and any modifications thereof to all of the judges of the FISC and the
Court of Review, the Chief Justice of the United States, the House Judiciary
Committee, the Senate Judiciary Committee, the House Permanent Select Committee
on Intelligence and the Senate Committee on Intelligence. Establishes certain public
reporting requirements with respect to electronic surveillance, physical searches, pen
registers, and business records production under FISA.
H.R. 2800. Foreign Operations, Export Financing, and Related Programs
Appropriations Act, 2004. A bill making appropriations for foreign operations,
export financing, and related programs for the fiscal year ending September 30, 2004,
and for other purposes. Introduced/originated in the House on July 21, 2003. On that
day, the House Committee on Appropriations reported an original measure, H.Rept.
108-222, by Representative Jim Kolbe. Passed the House, amended, on July 24,
2003, by Yeas and Nays, 370-50 (Roll no. 429). Received in the Senate July 24,
2003, read twice, and placed on Senate Legislative Calendar under General Orders,
Calendar No. 227. Sec. 582 bars the use of funds by the State Department to support
an application under FISA for an order requiring the production of library circulation
records, library patron lists, library Internet records, bookseller sales records, or
bookseller customer lists. Note that H.R. 2673, the Consolidated Appropriations bill

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for 2004, which became P.L. 108-199, included appropriations for Foreign
Operations, but does not appear to include FISA language.
H.R. 3179. Anti-Terrorism Intelligence Tools Improvement Act of 2003. Introduced
September 25, 2003, by Representative James Sensenbrenner, Jr., and referred to
House Committee on Judiciary an House Permanent Select Committee on
Intelligence. Referred to Subcommittee on Crime, Terrorism, and Homeland
Security of House Judiciary Committee on October 22, 2003. Subcommittee
hearings held May 18, 2004. Sec. 4 of the bill would amend Sec. 101(b)(1) of FISA,
50 U.S.C. § 1801(b)(1) to would include in the definition of an “agent of a foreign
power” any person other than a U.S. person who “engages in international terrorism
or activities in preparation therefor.” Sec. 6 of the bill would create an exception to
the FISA provisions regarding notification by the United States of intended use or
disclosure of information acquired through a FISA electronic surveillance, FISA
physical search, or FISA pen register or trap and trace device; motion to suppress;
and in camera and ex parte review by the district court, for civil proceedings or other
civil matters under the immigration laws.
H.R. 3352. Security and Freedom Ensured Act of 2003 or SAFE Act. Introduced
on October 21, 2003, by Representative C.L. (Butch) Otter, and referred to the House
Committee on the Judiciary and House Permanent Select Committee on Intelligence.
Referred to the Subcommittee on Crime, Terrorism, and Homeland Security of the
House Judiciary Committee on December 10, 2003. Sec. 2 of the bill would amend
the roving wiretap provisions of FISA to require that an order approving such
electronic surveillance must specify either the identity of the target or the places and
facilities to which the electronic surveillance is to be directed. In cases where the
facility or place is not known at the time of the issuance of the order, Sec. 2 of the bill
would require that the electronic surveillance only be conducted when the person
conducting the surveillance has ascertained that the target is present at a particular
facility or place. Sec. 4 of the bill would require that applications for FISA orders
for production of books, records, papers, documents, or other tangible things under
50 U.S.C. § 1861, must specify that there are specific and articulable facts giving
reason to believe that the person to whom the records pertain is a foreign power or
agent of a foreign power, and that the court, in issuing its order find that there are
specific and articulable facts giving reason to believe that the person to whom the
records pertain is a foreign power or an agent of a foreign power and that the
application meets the other requirements of 50 U.S.C. § 1861. Sec. 4 of the bill also
amends 50 U.S.C. § 1862 to require the Attorney General, on a semi-annual basis,
to fully inform the House Permanent Select Committee on Intelligence, the House
Judiciary Committee, the Senate Select Committee on Intelligence and the Senate
Judiciary Committee concerning all requests for production of tangible things under
50 U.S.C. 1861. The Attorney General’s report to the House and Senate Judiciary
Committees is also to include the total number of applications made under 50 U.S.C.
§ 1861, and the total number of such orders granted, modified or denied.
H.R. 3552. A bill to amend the Foreign Intelligence Surveillance Act of 1978 to
cover individuals, other than United States persons, who engage in international
terrorism without affiliation with an international terrorist group. Introduced
November 20, 2003, by Representative Peter King, and referred to the House
Committee on the Judiciary and the House Permanent Select Committee on

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Intelligence. Referred to the Subcommittee on Crime, Terrorism, and Homeland
Security of the House Judiciary Committee on December 10, 2003. Sec. 1 of the bill
would amend the definition of “agent of a foreign power” under FISA to cover any
person other than a U.S. person who engages in international terrorism or activities
in preparation therefor. Makes this definitional change subject to sunset December
31, 2005, except for any particular foreign intelligence investigations that began
before December 31, 2005, or any particular offenses or potential offenses which
began or occurred before December 31, 2005. As to those particular investigations
or offenses, applicable provisions would continue in effect. Sec. 2 adds additional
reporting requirements: the Attorney General is to report annually in April to the
House Judiciary Committee, House Permanent Select Committee on Intelligence,
Senate Judiciary Committee and Senate Select Committee on Intelligence on (1) the
aggregate number of non-U.S. persons targeted for FISA orders during the previous
year, broken down by electronic surveillance, physical searches, pen registers, or
access to records under 50 U.S.C. § 1861; (2) the number of individual covered by
an order issued under FISA who were determined pursuant to activities authorized
by FISA to have acted wholly alone in activities covered by the order; (3) the number
of times the Attorney General authorized that information obtained under FISA or
derivative information may be used in a criminal proceeding; and, (4) in a manner
consistent with protection of U.S. national security, redacting the facts of any
particular matter, the portions of the documents and applications filed with the
Foreign Intelligence Surveillance Court (FISC) or the Foreign Intelligence Court of
Review (Court of Review) that include significant construction or interpretation of
the provisions of FISA and the portions of opinions or court orders from the FISC or
Court of Review which include significant construction or interpretation of FISA
provisions.
H.R. 4591. Civil Liberties Restoration Act of 2004. Introduced June 16, 2004, by
Representative Howard Berman, and referred to the House Committee on the
Judiciary and the House Permanent Select Committee on Intelligence. Referred June
28, 2004, to the Subcommittee on Immigration, Border Security, and Claims and the
Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary
Committee. In the context of electronic surveillance or physical searches under
FISA, Sec. 401 of the bill would amend FISA to permit, rather than require, relevant
U.S. district courts, upon filing by the Attorney General of an affidavit under oath
that disclosure or an adversary hearing would harm U.S. national security, to review
in camera and ex parte the application, order, and other pertinent materials necessary
to determine whether the surveillance or physical search was lawfully authorized and
conducted. In making this determination with respect to an electronic surveillance,
the court shall disclose, if otherwise discoverable, to the aggrieved person, his or her
counsel, or both, under Classified Information Procedures Act (CIPA) procedures and
standards, portions of the application, order, or other materials relating to the
surveillance unless the court finds the disclosure would not assist in determining any
legal or factual issue pertinent to the case. It applies a similar standard in the context
of physical searches, but gives the court the option of requiring the Attorney General
to provide the aggrieved person, his or her counsel, or both, a summary of such
materials relating to the physical search. In the context of pen registers or trap and
trace devices, the bill would require disclosure to the aggrieved person, his or her
attorney, or both, under CIPA procedures and standards, if otherwise discoverable,
of portions of the application, order, or other materials relating to the use of the pen

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register or trap and trace device, or evidence or information obtained or derived from
the pen register or trap and trace device, unless such disclosure would not assist in
determining any legal or factual issue pertinent to the case. In the context of 50
U.S.C. § 1861, any disclosure of applications, information, or items submitted or
acquired pursuant to a FISA order for production of tangible things, if otherwise
discoverable, must be conducted under CIPA procedures and standards. Sec. 403 of
the bill would require that applications for FISA orders for production of books,
records, papers, documents, or other tangible things under 50 U.S.C. § 1861, must
specify that there are specific and articulable facts giving reason to believe that the
person to whom the records pertain is a foreign power or agent of a foreign power,
and that the court, in issuing its order find that there are specific and articulable facts
giving reason to believe that the person to whom the records pertain is a foreign
power or an agent of a foreign power ant that the application meets the other
requirements of 50 U.S.C. § 1861. Sec. 403 of the bill also amends 50 U.S.C. § 1862
to require the Attorney General, on a semi-annual basis, to fully inform the House
Permanent Select Committee on Intelligence, the House Judiciary Committee, the
Senate Select Committee on Intelligence and the Senate Judiciary Committee
concerning all requests for production of tangible things under 50 U.S.C. 1861. The
Attorney General’s report to the House and Senate Judiciary Committees is also to
include the total number of applications made under 50 U.S.C. § 1861, and the total
number of such orders granted, modified or denied.
H.Amdt. 652 to H.R. 4754. An amendment to add a new section to the Commerce-
Justice-State appropriations bill prohibiting funds from being made available to make
an application under Sec. 501 of FISA, 50 U.S.C. § 1861, for an order requiring
production of library circulation records, library patron lists, library internet records,
book sales records, or book customer lists. Introduced by Representative Sanders on
July 8, 2003. Amendment not agreed to by recorded vote 210-210, 1 present (Roll
no. 339).
S. 113. Official title as amended by the Senate: A bill to amend the Foreign
Intelligence Surveillance Act of 1978 to cover individuals, other than United States
persons, who engage in international terrorism without affiliation with an
international terrorist group. Introduced/originated in Senate on January 9, 2003, by
Senator Jon Kyl. Referred to Senate Judiciary Committee. On March 11, 2003,
reported out of the Senate Judiciary Committee by Senator Orrin Hatch with an
amendment in the nature of a substitute and an amendment to the title, without
written report Placed on Senate Legislative Calendar under General Orders, Calendar
No. 32. On April 29, 2003, Senate Judiciary Committee filed a written report,
S.Rept. 108-40; additional views filed. On May 8, 2003, Referred to Senate
Committee on Intelligence, pursuant to order of May 7, 2003; Senate Committee on
Intelligence discharged same day. On May 8, 2003, passed the Senate with an
amendment and an amendment to the title by Yea-Nay vote, 90-4 (Record Vote
Number 146). Received in House on May 9, 2003. Referred to the House Judiciary
Committee, and in addition to the House Permanent Select Committee on
Intelligence, for a period to be subsequently determined by the Speaker, in each case
for consideration of such provisions as fall within the jurisdiction of the committee
concerned. On June 25, 2003, referred to Subcommittee on Crime, Terrorism, and
Homeland Security. As passed the Senate and referred to the House, Sec. 1 of the
bill amends Section 101(b)(1) of FISA, 50 U.S.C. § 1801(b)(1) to include in the

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definition of agent of a foreign power non-U.S. persons who engage in international
terrorism or activities in preparation for international terrorism. The new subsection
does not require that such persons be affiliated with an international terrorist group,
or foreign nation or group. Makes the sunset provision in Sec. 224 of the USA
PATRIOT Act, P.L. 107-56 applicable to this amendment. Sec. 2 of the bill creates
new annual reporting requirements under FISA to be made by the Attorney General
to the House Judiciary Committee, Senate Judiciary Committee, House Permanent
Select Committee on Intelligence and Senate Committee on Intelligence.3
S. 123. A bill to exclude United States persons from the definition of “foreign
power” under the Foreign Intelligence Surveillance Act of 1978 relating to
international terrorism. Introduced by Senator Jon Kyl on January 9, 2003. Referred
to Senate Judiciary Committee. Related bill, S. 113. Sec. 1 of the bill would amend
the definition of a “foreign power” under Section 101(a)(4), 50 U.S.C. § 1801(a)(4),
to include a person, other than a U.S. person, or a group that engages in international
terrorism or activities in preparation therefor. Previously this subsection had only
covered groups engaged in international terrorism or activities in preparation for
international terrorism.
S. 410. Foreign Intelligence Collection Improvement Act of 2003, including
Homeland Intelligence Agency Act of 2003 and Foreign Intelligence Surveillance
Public Reporting Act. A bill to establish the Homeland Intelligence Agency, and
for other purposes. Introduced by Senator John Edwards on February 13, 2003.
Referred to Senate Committee on Intelligence. Title III, Subtitle A, amends FISA
reporting requirements with respect to electronic surveillance and physical searches.
Also would require reporting, within discretion of Attorney General or Director of
Homeland Intelligence and in a manner consistent with protection of U.S. national
security, of significant interpretations of FISA, including, as appropriate, redacted
portions of opinions or orders of FISA court. Title III, Subtitle B, of the bill would
amend Title VI of FISA to address participation by an official or agent of a proposed
Homeland Intelligence Agency in religious and political groups for foreign
intelligence and international terrorism purposes. Subtitle III, Subtitle A, of S. 410
also provides reporting requirements with respect to such undisclosed participation.
S. 436. Domestic Surveillance Oversight Act of 2003. A bill to amend the Foreign
Intelligence Surveillance Act of 1978 to improve the administration and oversight of
foreign intelligence surveillance, and for other purposes. Introduced by Senator
Patrick Leahy on February 25, 2003. Referred to Senate Judiciary Committee.
Among other things, authorizes Foreign Intelligence Surveillance Court (FISC) and
Foreign Intelligence Court of Review (Court of Review) to establish rules and
procedures and to take actions necessary to administer FISA. Requires reporting of
such rules and procedures and any modifications thereof to all of the judges of the
FISC and the Court of Review, the Chief Justice of the United States, the House
Judiciary Committee, the Senate Judiciary Committee, the House Permanent Select
Committee on Intelligence and the Senate Committee on Intelligence. Establishes
3 For a more detailed discussion of S. 113, see CRS Report RS21472, Proposed Change to
the Foreign Intelligence Surveillance Act (FISA) under S. 113
, by Jennifer Elsea.

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certain public reporting requirements with respect to electronic surveillance, physical
searches, pen registers, and business records production under FISA.
S. 578. Tribal Government Amendments to the Homeland Security Act of 2002. A
bill to amend the Homeland Security Act of 2002 to include Indian tribes among the
entities consulted with respect to activities carried out by the Secretary of Homeland
Security, and for other purposes. Introduced by Senator Daniel K. Inouye on March
7, 2003. Referred to Senate Governmental Affairs Committee. Hearings held before
the Senate Select Committee on Indian Affairs on July 30, 2003, S. Hrg. 108-312.
Sec. 12(g)(1) would amend Section 106(k)(1) of FISA, 50 U.S.C. § 1806(k)(1), to
permit federal officers who conduct electronic surveillance to acquire foreign
intelligence information under FISA to consult, among others, with law enforcement
personnel of an Indian tribe. Sec. 12(g)(2) would also amend Section 305(k)(1) of
FISA, 50 U.S.C. § 1825(k)(1), to permit federal officers who conduct a physical
search under FISA to consult, among others, with law enforcement personnel of an
Indian Tribe.
S. 1158. Library and Bookseller Protection Act. A bill to exempt bookstores and
libraries from orders requiring the production of tangible things for foreign
intelligence investigations, and to exempt libraries from counterintelligence access
to certain records, ensuring that libraries and bookstores are subjected to the regular
system of court ordered warrants. Introduced by Senator Barbara Boxer on May 23,
2003. Referred to Senate Judiciary Committee. Sec. 2 of the bill amends Section
501 of FISA, 50 U.S.C. § 1861, to preclude an application for an order seeking or
having the effect of searching for or seizing records of a bookseller or library
documentary materials concerning personally identifiable information regarding a
patron of the library or bookstore. Does not preclude a physical search for such
documentary materials under another provision of law.
S. 1507. Library, Bookseller, and Personal Records Privacy Act. Introduced July 31,
2003, by Senator Russell Feingold, and referred to the Senate Judiciary Committee.
Sec. 2 of the bill would require that applications for FISA orders for production of
books, records, papers, documents, or other tangible things under 50 U.S.C. § 1861,
must specify that there are specific and articulable facts giving reason to believe that
the person to whom the records pertain is a foreign power or agent of a foreign
power, and that the court, in issuing its order find that there are specific and
articulable facts giving reason to believe that the person to whom the records pertain
is a foreign power or an agent of a foreign power ant that the application meets the
other requirements of 50 U.S.C. § 1861. Sec. 2 of the bill also amends 50 U.S.C. §
1862 to require the Attorney General, on a semi-annual basis, to fully inform the
House Permanent Select Committee on Intelligence, the House Judiciary Committee,
the Senate Select Committee on Intelligence and the Senate Judiciary Committee
concerning all requests for production of tangible things under 50 U.S.C. 1861. The
Attorney General’s report to the House and Senate Judiciary Committees is also to
include the total number of applications made under 50 U.S.C. § 1861, and the total
number of such orders granted, modified or denied.
S. 1552. Protecting the Rights of Individuals Act. A bill to amend title 18, United
States Code, and the Foreign Intelligence Surveillance Act of 1978 to strengthen
protections of civil liberties in the exercise of the foreign intelligence surveillance

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authorities under Federal law, and for other purposes. Introduced by Senator Lisa
Murkowski on July 31, 2003. Referred to Senate Judiciary Committee. Among
other things, Sec. 4 of the bill amends Section 501 of FISA, 50 U.S.C. § 1861, the
business records provision, to add as an additional requirement for an application for
a court order that it “include a statement of the facts and circumstances relied upon
by the applicant to justify the applicant’s belief that the person to whom the records
pertain is a foreign power or an agent of a foreign power.” Also provides that a judge
shall enter an ex parte order as requested or modified approving the release of records
if the judge finds reason to believe that the person to whom the records pertain is a
foreign power or an agent of a foreign power; or, in the case of medical records,
library records, other records involving purchase or rental of books, video, or music,
or accessing of legal and publicly available information through the internet, that
there is probable cause that the person to whom the records pertain is a foreign power
or an agent of a foreign power. The application must also meet other requirements
of the section. Sec. 5 of the bill amends Section 105(c) of FISA, 50 U.S.C. §
1805(c), to eliminate John Doe roving wiretaps under FISA. Sec. 8 of the bill
establishes certain public reporting requirements under FISA.
S. 1709. Security and Freedom Ensured Act of 2003 or the SAFE Act. Introduced
October 2, 2003, by Senator Larry Craig, and referred to Senate Judiciary Committee.
Sec. 2 of the bill would amend the roving wiretap provisions of FISA to require that
an order approving such electronic surveillance must specify either the identity of the
target or the places and facilities to which the electronic surveillance is to be directed.
In cases where the facility or place is not known at the time of the issuance of the
order, Sec. 2 of the bill would require that the electronic surveillance only be
conducted when the person conducting the surveillance has ascertained that the target
is present at a particular facility or place. Sec. 4 of the bill would require that
applications for FISA orders for production of books, records, papers, documents,
or other tangible things under 50 U.S.C. § 1861, must specify that there are specific
and articulable facts giving reason to believe that the person to whom the records
pertain is a foreign power or agent of a foreign power, and that the court, in issuing
its order find that there are specific and articulable facts giving reason to believe that
the person to whom the records pertain is a foreign power or an agent of a foreign
power ant that the application meets the other requirements of 50 U.S.C. § 1861.
Sec. 4 of the bill also amends 50 U.S.C. § 1862 to require the Attorney General, on
a semiannual basis, to fully inform the House Permanent Select Committee on
Intelligence, the House Judiciary Committee, the Senate Select Committee on
Intelligence and the Senate Judiciary Committee concerning all requests for
production of tangible things under 50 U.S.C. 1861.
S. 2528. Civil Liberties Restoration Act of 2004. Introduced June 16, 2004, by
Senator Edward Kennedy, and referred to the Senate Judiciary Committee. In the
context of electronic surveillance or physical searches under FISA, Sec. 401 of the
bill would amend FISA to permit, rather than require, relevant U.S. district courts,
upon filing by the Attorney General of an affidavit under oath that disclosure or an
adversary hearing would harm U.S. national security, to review in camera and ex
parte the application, order, and other pertinent materials necessary to determine
whether the surveillance or physical search was lawfully authorized and conducted.
In making this determination with respect to an electronic surveillance, the court shall
disclose, if otherwise discoverable, to the aggrieved person, his or her counsel, or

CRS-14
both, under Classified Information Procedures Act (CIPA) procedures and standards,
portions of the application, order, or other materials relating to the surveillance unless
the court finds the disclosure would not assist in determining any legal or factual
issue pertinent to the case. The bill applies a similar standard in the context of
physical searches, but gives the court the option of requiring the Attorney General to
provide the aggrieved person, his or her counsel, or both, a summary of such
materials relating to the physical search. In the context of pen registers or trap and
trace devices, the bill would require disclosure to the aggrieved person, his or her
attorney, or both, under CIPA procedures and standards, if otherwise discoverable,
of portions of the application, order, or other materials relating to the use of the pen
register or trap and trace device, or evidence or information obtained or derived from
the pen register or trap and trace device, unless such disclosure would not assist in
determining any legal or factual issue pertinent to the case. In the context of 50
U.S.C. § 1861, any disclosure of applications, information, or items submitted or
acquired pursuant to a FISA order for production of tangible things, if otherwise
discoverable, must be conducted under CIPA procedures and standards.
S.Amdt. 536 to S. 113. To establish additional annual reporting requirements on
activities under FISA. Introduced May 8, 2003, by Senator Feingold. Agreed to the
same day by Unanimous Consent. Under the amendment, the Attorney General is to
report annually in April to the House Judiciary Committee, House Permanent Select
Committee on Intelligence, Senate Judiciary Committee and Senate Select
Committee on Intelligence on (1) the aggregate number of non-U.S. persons targeted
for FISA orders during the previous year, broken down by electronic surveillance,
physical searches, pen registers, or access to records under 50 U.S.C. § 1861; (2) the
number of individual covered by an order issued under FISA who were determined
pursuant to activities authorized by FISA to have acted wholly alone n activities
covered by the order; (3) the number of times the Attorney General authorized that
information obtained under FISA or derivative information may be used in a criminal
proceeding; and, (4) in a manner consistent with protection of U.S. national security,
redacting the facts of any particular matter, the portions of the documents and
applications filed with the Foreign Intelligence Surveillance Court (FISC) or the
Foreign Intelligence Court of Review (Court of Review) that include significant
construction or interpretation of the provisions of FISA and the portions of opinions
or court orders from the FISC or Court of Review which include significant
construction or interpretation of FISA provisions.