Order Code RL33637
CRS Report for Congress
Received through the CRS Web
H.R. 5825 (109th Congress): “Electronic
Surveillance Modernization Act”
September 8, 2006
Elizabeth B. Bazan
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

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H.R. 5825 (109th Congress): “Electronic Surveillance
Modernization Act”
Summary
In discussing the need for the National Security Agency’s “Terrorist
Surveillance Program,” a program in which international communications of persons
within the United States have been the subject of electronic surveillance without a
warrant or a Foreign Intelligence Surveillance Court order, where one party to the
communication is believed to be a member of al Qaeda, affiliated with al Qaeda, a
member of an organization affiliated with al Qaeda, or working in support of al
Qaeda, the Bush Administration has stated that electronic surveillance under the
Foreign Intelligence Surveillance Act (FISA), while still a valuable tool in combating
terrorism, lacks the speed and agility to deal with such terrorists or terrorist groups.
Critics have challenged the NSA program on legal and constitutional grounds. On
August 17, 2006, in American Civil Liberties Union v. National Security Agency,
Case No. 06-CV-10204 (E.D. Mich. August 17, 2006), U.S. District Court Judge
Anna Diggs Taylor held the program unconstitutional on the ground that it violated
the Administrative Procedures Act, the Separation of Powers doctrine, the First and
Fourth Amendments of the U.S. Constitution, the Foreign Intelligence Surveillance
Act (FISA), and Title III of the Omnibus Crime Control and Safe Streets Act (Title
III). The decision has been appealed.
Several bills have been introduced in the House of Representatives and in the
Senate to amend the Foreign Intelligence Surveillance Act and to address questions
raised with respect to the “Terrorist Surveillance Program.” H.R. 5825, the
“Electronic Surveillance Modernization Act,” was introduced on July 18, 2006. The
bill was referred on that date to both the House Committee on the Judiciary and to
the House Permanent Select Committee on Intelligence. On September 1, 2006, it
was referred to the Subcommittee on Crime, Terrorism, and Homeland Security of
the House Judiciary Committee. H.R. 5825 was one of several bills that were the
focus of a hearing held before the House Judiciary Committee’s Subcommittee on
Crime, Terrorism, and Homeland Security on Wednesday, September 6, 2006. This
report will summarize the provisions of the bill and discuss the impact of its
provisions, if passed, on current law.

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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Sec. 2. FISA Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Sec. 3. Authorization for Electronic Surveillance for Foreign Intelligence
Purposes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Sec. 4. Applications for Court Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Sec. 5. Issuance of an Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Sec. 6. Use of Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Sec. 7. Authorization after an Armed Attack . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Sec. 8. Authorization of Electronic Surveillance after a Terrorist
Attack . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Sec. 9. Congressional Oversight . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Sec. 10. Technical and Conforming Amendments . . . . . . . . . . . . . . . . . . . . . . . 22

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H.R. 5825 (109th Congress): “Electronic
Surveillance Modernization Act”
Introduction
In discussing the need for the National Security Agency’s “Terrorist
Surveillance Program,” a program in which international communications of persons
within the United States have been the subject of electronic surveillance, without a
warrant or a Foreign Intelligence Surveillance Court (FISC) order, where one party
to the communication is believed to be a member of al Qaeda, affiliated with al
Qaeda, a member of an organization affiliated with al Qaeda, or working in support
of al Qaeda, the Bush Administration has stated that electronic surveillance under the
Foreign Intelligence Surveillance Act, while still a valuable tool in combating
terrorism, lacks the speed and agility needed to deal with such terrorists or terrorist
groups.1 The Foreign Intelligence Surveillance Act (FISA), P.L. 95-511, Title I,
October 25, 1978, 92 Stat. 1796, codified at 50 U.S.C. § 1801 et seq., as amended,
provides a statutory framework for the use of electronic surveillance, physical
searches, pen registers and trap and trace devices to acquire foreign intelligence
information.2 It also provides statutory authority for the production of tangible things
1 See U.S. DEPARTMENT OF JUSTICE, LEGAL AUTHORITIES SUPPORTING THE ACTIVITIES OF
THE NATIONAL SECURITY AGENCY DESCRIBED BY THE PRESIDENT 34 (January 19, 2005);
Letter of December 22, 2005, from Assistant Attorney General William E. Moschella to the
Honorable Pat Roberts, the Honorable John D. Rockefeller, IV, the Honorable Peter
Hoekstra, and the Honorable Jane Harman, at 5; Statements by Attorney General Alberto
Gonzales and General Michael Hayden, Principal Deputy Director for National Intelligence,
during December 19, 2005, Press Briefing available at [http://www.whitehouse.gov/
news/releases/2005/12/20051219-1.html].
2 Under section 101(e) of FISA, 50 U.S.C. § 1801(e), “foreign intelligence information” is
defined to mean:
(1) information that relates to, and if concerning a United States person is
necessary to, the ability of the United States to 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 or international terrorism 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; or
(2) information with respect to a foreign power or foreign territory that relates
to, and if concerning a United States person is necessary to —
(A) the national defense or the security of the United States; or
(B) the conduct of the foreign affairs of the United States.
(continued...)

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for an investigation to obtain foreign intelligence information not concerning a
United States person or to protect against international terrorism or clandestine
intelligence activities.3 Several bills have been introduced in the House of
Representatives and in the Senate to amend the Foreign Intelligence Surveillance Act
and to address concerns raised with respect to the “Terrorist Surveillance Program.”
H.R. 5825, the “Electronic Surveillance Modernization Act,” was introduced on
July 18, 2006, by Representative Heather Wilson, for herself, Representative
Sensenbrenner, Representative Hoekstra, Representative Renzi, Representative
Johnson of Connecticut, Representative Everett, Representative Thornberry,
Representative Rogers of Michigan, Representative Gallegly and Representative Issa.
The bill was referred the same day to both the House Committee on the Judiciary and
to the House Permanent Select Committee on Intelligence. On September 1, 2006,
it was referred to the Subcommittee on Crime, Terrorism, and Homeland Security of
the House Judiciary Committee. H.R. 5825 was one of several bills4 that were the
focus of a hearing before the Subcommittee on Crime, Terrorism, and Homeland
Security of the House Judiciary Committee on Wednesday, September 6, 2006. This
report will summarize the provisions of H.R. 5825 and will discuss the impact of its
provisions, if passed, on current law. The sections of the bill will be addressed in the
order in which they appear in the bill.
2 (...continued)
“International terrorism” is defined in subsection 101(c), 50 U.S.C. § 1801(c) to mean
activities that:
(1) involve violent acts or acts dangerous to human life that are a violation of the
criminal laws of the United States or of any State, or that would be a criminal
violation if committed within the jurisdiction of the United States or any State;
(2) appear to be intended —
(A) to intimidate or coerce a civilian population;
(B) to influence the policy of a government by intimidation or coercion; or
(C) to affect the conduct of a government by assassination or kidnapping;
and
(3) occur totally outside the United States, or transcend national boundaries in
terms of the means by which they are accomplished, the persons they appear
intended to coerce or intimidate, or the locale in which their perpetrators operate
or seek asylum.
“Sabotage” is defined in 50 U.S.C. § 1801(d) to mean “activities that involve a violation of
chapter 105 of Title 18, or that would involve such a violation if committed against the
United States.”
3 Under Sec. 106(a)(1) of FISA, 50 U.S.C. § 1861(a)(1), where such an investigation is of
a United States person, it may not be conducted “solely upon the basis of activities protected
by the first amendment to the Constitution.”
4 The Subcommittee hearing was on “Legislative Proposals to Update the Foreign
Intelligence Surveillance Act (FISA).” The bills anticipated to be considered were H.R.
4976, H.R. 5223, H.R. 5371, H.R. 5825, S. 2453, and S. 2455.

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Sec. 2. FISA Definitions
Sec. 2 of the bill amends the current definitions in the Foreign Intelligence
Surveillance Act (FISA). Sec. 2(a) amends definition of “agent of a foreign power”
in subsection 101(b)(1), 50 U.S.C. § 1801(b)(1),5 to add a new category covering any
person, other than a United States person,6 who “(D) possesses or is reasonably
expected to transmit or receive foreign intelligence information while in the United
States.” Unlike the definitions of “agent of a foreign power” in subsections
101(b)(1)(A) and 101(b)(1)(B), but like the so-called “lone wolf” provision in
subsection 101(b)(1)(C), the definition of an “agent of a foreign power” under
proposed subsection 101(b)(1)(D) does not require that the non-U.S. person covered
by this new definition have any connection with a foreign power. However, it differs
from the latter provision in that under proposed subsection 101(b)(1)(D), possession
of foreign intelligence information by a non-U.S. person, without more, appears
sufficient for that person to be categorized as an “agent of a foreign power.”
Alternatively, under the proposed new definition, a non-U.S. person who is
“reasonably expected to transmit or receive foreign intelligence information while in
the United States” would also be considered an “agent of a foreign power.” The
proposed definition does not appear to require an action or intent to act for the benefit
of a foreign power or against the interests of the United States, nor does it require any
ill intent. This would seem to significantly broaden the reach of the term so defined.
Sec. 2(b) amends the definition of “electronic surveillance” in subsection 101(f)
of FISA, 50 U.S.C. § 1801(f), to mean:
5 Under current law, “agent of a foreign power” under section 101(b)(1) of FISA, 50 U.S.C.
§ 1801(b)(1) includes three categories of persons, who are not United States persons. These
categories include any person other than a United States person, (A) who acts in the United
States as an officer or employee of a foreign power, or, as a member of a group engaged in
international terrorism or activities in preparation therefor; (B) who acts for or on behalf of
a foreign power which engages in clandestine intelligence activities in the United States
contrary to the interests of the United States, when the circumstances of such person’s
presence in the United States indicate that such person may engage in such activities in the
United States, or when such person knowingly aids or abets any person in the conduct of
such activities or knowingly conspires with any person to engage in such activities; or (C)
who engages in international terrorism or activities in preparation for international terrorism.
6 Under section 101(i) of FISA, 50 U.S.C. § 1801(i), a “United States person” is defined to
mean “a citizen of the United States, an alien lawfully admitted for permanent residence (as
defined in section 101(a)(20) of the Immigration and Nationality Act [8 U.S.C. §
1101(a)(20)]), an unincorporated association a substantial number of members of which are
citizens of the United States or aliens lawfully admitted for permanent residence, or a
corporation which is incorporated in the United States, but does not include a corporation
or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this
section.” Under the cross-referenced sections, “foreign power” means “a foreign
government or any component thereof, whether or not recognized by the United States;” “a
faction of a foreign nation or nations, not substantially composed of United States persons;”
or “an entity that is openly acknowledged by a foreign government or governments to be
directed and controlled by such foreign government or governments.” It does not include
international terrorist organizations.

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(1) the installation or use of a surveillance device [as defined in subsection (2)(d)
of the bill, new subsection 101(l) of FISA, 50 U.S.C. § 1801(l)7] for the
intentional collection of information relating to a person who is reasonably
believed to be in the United States by intentionally targeting that person, under
circumstances in which the 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, without the
consent of a party to the communication, under circumstances in which a person
has reasonable expectation of privacy and a warrant would be required for law
enforcement purposes, if both the sender and all intended recipients are located
within the United States.8
Although this is a broader, shorter, and more general definition than that contained
in current law, there are some similarities in language.
Proposed subsection 101(f)(1) blends some of the elements of current
subsections 101(f)(1) and (f)(4) with new elements, while eliminating other aspects
7 Under current law, section 101(l) of FISA, 50 U.S.C. § 1801(l) defines “wire
communication” to mean, “any communication while it is being carried by a wire, cable, or
other like connection furnished or operated by any person engaged as a common carrier in
providing or operating such facilities for the transmission of interstate or foreign
communications.” Under the new definition of “surveillance device” in Sec. 2(d) of H.R.
5825, the term would mean, “a device that allows surveillance by the Federal Government,
but excludes any device that extracts or analyzes information from data that has already
been acquired by the Federal Government by lawful means.” While the term “surveillance
device” is not currently defined in FISA, it is used in the current definition of “electronic
surveillance” under subsection 101(f) of FISA, 50 U.S.C. § 1801(f).
8 Under current law, “electronic surveillance” is defined under subsection 101(f) of FISA,
50 U.S.C. § 1801(f), to mean:
(1) the acquisition by an electronic, mechanical, or other surveillance device of
the contents of any wire or radio communication sent by or intended to be
received by a particular, known United States person who is in the United States,
if the contents are acquired by intentionally targeting that United States person,
under circumstances in which a person has a reasonable expectation of privacy
and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of
the contents of any wire communication to or from a person in the United States,
without the consent of any party thereto, if such acquisition occurs in the United
States, but does not include the acquisition of those communications of computer
trespassers that would be permissible under section 2511(2)(i) of Title 18;
(3) the intentional acquisition by an electronic, mechanical, or other surveillance
device of the contents of any radio communication, under circumstances in
which a person has a reasonable expectation of privacy and a warrant would be
required for law enforcement purposes, and if both the sender and all intended
recipients are located within the United States; or
(4) the installation or use of an electronic, mechanical, or other surveillance
device in the United States for monitoring to acquire information, other than
from a wire or radio communication, under circumstances in which a person has
a reasonable expectation of privacy and a warrant would be required for law
enforcement purposes.

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of those provisions. Current subsection 101(f)(1) deals with the use of a surveillance
device to intercept the contents of wire or radio communications sent by or intended
to be received by a particular, known, intentionally targeted U.S. person, who is in
the United States, under circumstances in which a person has a reasonable
expectation of privacy and a warrant would be required for law enforcement
purposes. Current subsection 101(f)(4) deals with the installation or use of a
surveillance device in the United States “for monitoring to acquire information, other
than from a wire or radio communication, under circumstances in which a person has
a reasonable expectation of privacy and a warrant would be required for law
enforcement purposes.” However, unlike current subsection 101(f)(1), the new
definition does not explicitly distinguish between interception of the communications
of U.S. persons and those of non-U.S. persons, nor is it restricted to acquisition of the
contents of communications. The current subsection 101(f)(1) requires the person
intentionally targeted to be in the United States, while the proposed provision
requires a reasonable belief that the intentionally targeted person be in the United
States. While both proposed subsection 101(f)(1) and current subsection 101(f)(4)
deal with the installation or use of a surveillance device to acquire information,
unlike current subsection 101(f)(4), the proposed definition contains no express
requirement that the surveillance device be installed or used in the United States, and
no restriction on acquisition of that information from wire or radio communications.
The proposed subsection 101(f)(1) explicitly involves intentional targeting of a
person, while current subsection 101(f)(4) does not.
New subsection 101(f)(2) has significant parallels to current subsection
101(f)(3), in that both deal with “intentional acquisition” of the contents of a
“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 the intended recipients are located in the United States.” However, the
current provision is limited to intentional acquisition of radio communications by
means of “an electronic, mechanical, or other surveillance device,” and does not
include a requirement that the interception be “without the consent of any party to the
communication.” Consent is addressed in current subsection 101(f)(2), which deals
with acquisition, rather than intentional acquisition, within the United States, of a
communication to or from a person in the United States, without that party’s consent.
The latter provision exempts from coverage “the acquisition of those
communications of computer trespassers that would be permissible under section
2511(2)(i) of Title 18.” Proposed subsection 101(f)(2) contains no similar
exemption.
Under current law, “minimization procedures” are defined in section 101(h) of
FISA, 50 U.S.C. § 1801(h)(1)-(4). Sec. 2(c) of H.R. 5825 amends the definition of
“minimization procedures” in section 101(h), 50 U.S.C. § 1801(h), to delete
subsection (4). Current Section 101(h)(4) of FISA, 50 U.S.C. § 1801(h)(4), includes
in the definition of “minimization procedures,” with respect to any electronic
surveillance approved pursuant to 50 U.S.C. § 1802(a), “procedures that require that
no contents of any communication to which a United States person is a party shall be
disclosed, disseminated, or used for any purpose or retained for longer than 72 hours
unless a court order under section 1805 of this title is obtained or unless the Attorney
General determines that the information indicates a threat of death or serious bodily
harm to any person.”

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Under the current section 102(a) of FISA, 50 U.S.C. § 1802(a), the President,
through the Attorney General, may authorize electronic surveillance without a court
order under FISA to acquire foreign intelligence information for periods of up to one
year based upon a written certification under oath by the Attorney General that meets
certain criteria and satisfies specified reporting requirements. Under these criteria,
the Attorney General must certify that the electronic surveillance is solely directed
at either the acquisition of the contents of communications transmitted by means of
communications used exclusively between or among foreign powers, as defined in
section 101(a)(1), (2) or (3) of FISA, 50 U.S.C. § 1801(a)(1), (2), or (3); or the
acquisition of technical intelligence, other than the spoken communications of
individuals, from property or premises under the open and exclusive control of a
foreign power, as so defined. Under the cross-referenced sections, “foreign power”
means a foreign government or any component thereof, whether or not recognized
by the United States; a faction of a foreign nation or nations, not substantially
composed of United States persons; or an entity that is openly acknowledged by a
foreign government or governments to be directed and controlled by such foreign
government or governments. It does not include international terrorist organizations.
As amended by Sec. 3(1)(A) of H.R. 5825, discussed infra, subsection 102(a)(1)
would also cover acquisition of the contents of communications of an “agent of a
foreign power” as defined in section 101(b)(1) of FISA, 50 U.S.C. § 1801(b)(1),
which deals with agents of foreign powers who are not U.S. persons.
In addition, current law requires the Attorney General, when acting under
section 102 of FISA, 50 U.S.C. § 1802, to certify that there is no substantial
likelihood that the surveillance will acquire the contents of any communication to
which a United States person is a party. As amended by Sec. 3 of H.R. 5825, this
requirement would be eliminated. Current law also requires the Attorney General,
in authorizing electronic surveillance without a court order under Section 102 of
FISA, to certify that the proposed minimization procedures with respect to such
surveillance meet the definition of minimization procedures under section 101(h) of
FISA, 50 U.S.C. § 1801(h).
Under current subsection 102(a) of FISA, 50 U.S.C. § 1802(a), also requires the
Attorney General to report such minimization procedures and any changes thereto to
the House Permanent Select Committee on Intelligence and the Senate Select
Committee on Intelligence at least thirty days prior to their effective date, unless the
Attorney General determines immediate action is required and notifies the
committees immediately of such minimization procedures and the reason for their
becoming effective immediately.
Under current subsection 102(a)(2) of FISA, 50 U.S.C. § 1802(a)(2), an
electronic surveillance authorized by this subsection may be conducted only in
accordance with the Attorney General’s certification and the minimization
procedures adopted by him. The Attorney General is required to assess compliance
with the minimization procedures and to report such assessments to the House

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Permanent Select Committee on Intelligence and the Senate Select Committee on
Intelligence under the provisions of section 108(a) of FISA, 50 U.S.C. §1808(a).9
Sec. 2(d) of the bill replaces current definition of “wire communication” in
section 101(l) with a definition of “surveillance device,” which means “a device that
allows surveillance by the Federal Government, but excludes any device that extracts
or analyzes information from data that already has been acquired by the Federal
Government by lawful means.”10
Sec. 2(e) of H.R. 5825 amends subsection 301(5) of FISA, 50 U.S.C. § 1821(5),
which currently defines “physical search” to mean
any physical intrusion within the United States into premises or property
(including examination of the interior of property by technical means) that is
intended to result in a seizure, reproduction, inspection, or alteration of
information, material, or property, under circumstances in which a person has a
reasonable expectation of privacy and a warrant would be required for law
enforcement purposes, but does not include (A) “electronic surveillance”, as
defined in section 101(f) of this Act [1801(f) of this title], or (B) the acquisition
by the United States Government of foreign intelligence information from
international or foreign communications, or foreign intelligence activities
conducted in accordance with otherwise applicable Federal law involving a
foreign electronic communications system, utilizing a means other than
electronic surveillance as defined in section 101(f) of this Act [ 1801(f) of this
title].
9 Under current section 102(a)(3) of FISA, 50 U.S.C. § 1802(a)(3), the Attorney General is
required to immediately transmit his certification under seal to the Foreign Intelligence
Surveillance Court, which would remained sealed unless (A) an application for a court order
with respect to the surveillance is made under sections 101(h)(4) of FISA, 50 U.S.C. §
1801(h)(4) and section 104 of FISA, 50 U.S.C. § 1804; or (B) the certification is necessary
to determine the legality of the surveillance under section 106(f) of FISA, 50 U.S.C. §
1806(f). As amended by Sec. 10(1) of H.R. 5825, the reference to 101(h)(4) of FISA, 50
U.S.C. § 1801(h)(4), in subsection 102(a)(3)(A), 50 U.S.C. § 1802(a)(3)(A) would be
deleted. It may be noted that, as so amended, the “sections” which currently precedes this
reference would remain plural.
Pursuant to current section 102(a)(4) of FISA, 50 U.S.C. § 1802(a)(4), in regard to
electronic surveillance authorized by Section 102(a), the Attorney General may direct a
specified communication carrier to “(A) furnish all information, facilities, or technical
assistance necessary to accomplish the electronic surveillance in such a manner as will
protect its secrecy and produce a minimum of interference with the services that such carrier
is providing its customers;” and “(B) maintain under security procedures approved by the
Attorney General and the Director of National Intelligence any records concerning the
surveillance or the aid furnished which such carrier wishes to retain.” The Government is
also directed to compensate the communications carrier at the prevailing rate for furnishing
such aid. Section 3(2) of H.R. 5825 would strike Section 102(a)(4) of FISA, 50 U.S.C. §
1802(a)(4).
10 For further discussion of these definitions, see footnote 4, supra.

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Sec. 2(e) amends definition of “physical search” in subsection 301(5) of FISA, 50
U.S.C. § 1821(5), to include activities described in section 102(b) of FISA, 50 U.S.C.
§ 1802(b), as amended by Sec. 3 of the bill.11
Sec. 3. Authorization for Electronic Surveillance for
Foreign Intelligence Purposes
Sec. 3 of H.R. 5825 amends section 102 of FISA, 50 U.S.C. § 1802. Sec.
3(1)(A) amends subsection 102(a)(1)(A)(i) to cover acquisition of the contents of
communications of a “foreign power,” as defined in section 101(a)(1), (2), or (3) of
FISA, 50 U.S.C. § 1801(a)(1), (2), or (3) (that is, a foreign government or any
component thereof, whether or not recognized by the United States; a faction of a
foreign nation or nations, not substantially composed of United States persons; or an
entity that is openly acknowledged by a foreign government or governments to be
directed and controlled by such foreign government or governments); or an “agent
of a foreign power” as defined in section 101(b)(1) (that is, an agent of a foreign
power who is not a U.S. person).
Sec. 3(1)(B) deletes subsection 102(a)(1)(B) of FISA, 50 U.S.C. § 1802(a)(1)(B)
and redesignates subparagraph 102(a)(1)(C) of FISA as subparagraph 102(a)(1)(B)
of FISA. Under current law, subsection 102(a)(1)(B) of FISA requires the Attorney
General, in authorizing electronic surveillance without a court order under section
102 of FISA, 50 U.S.C. § 1802, to certify that “there is no substantial likelihood that
the surveillance will acquire the contents of any communication to which a United
States person is a party.”
Sec. 3(2) deletes subsection 102(a)(4) of FISA, 50 U.S.C. § 1802(a)(4).
Pursuant to current subsection 102(a)(4) of FISA, 50 U.S.C. § 1802(a)(4), with
respect to electronic surveillance authorized by subsection 102(a) of FISA, 50 U.S.C.
§ 1802(a), the Attorney General may direct a specified communication carrier to “(A)
furnish all information, facilities, or technical assistance necessary to accomplish the
electronic surveillance in such a manner as will protect its secrecy and produce a
minimum of interference with the services that such carrier is providing its
customers;” and “(B) maintain under security procedures approved by the Attorney
General and the Director of National Intelligence any records concerning the
surveillance or the aid furnished which such carrier wishes to retain.” The
Government is also directed to compensate the communications carrier at the
prevailing rate for furnishing such aid.
11 Under Sec. 2(e) of H.R. 5825, subsection 301(5), 50 U.S.C. § 1801(5) would be amended
by replacing “Act , or (B)” with “Act, (B) activities described in Section 102(b) of this Act,
or (C).”

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Sec. 3(3) amends subsection 102(b)12 of FISA, 50 U.S.C. § 1802(b), to authorize
the Attorney General to require, by written certification, any person with authorized
access to electronic communications or equipment used to transmit or store electronic
communications to provide information, facilities, or technical assistance necessary
to accomplish electronic surveillance authorized under subsection 102(a); or to
provide such information, facilities, or technical assistance to an official designated
by the President for up to one year, provided the Attorney General certifies in writing,
under oath, that the provision of the information, facilities, or technical assistance
does not constitute electronic surveillance. As amended, subsection 102(b) of FISA,
50 U.S.C. § 1802(b) would also provide that the Attorney General may require a
person providing such information, facilities, or technical assistance to do so in such
a manner as to protect the secrecy of such provision of information, facilities or
technical assistance and produce a minimum of interference with customer services;
and may require such person to maintain any records he or she wishes to retain
concerning such electronic surveillance or the information, facilities, or technical
assistance provided, under security procedures approved by the Attorney General and
the Director of National Intelligence (DNI). In addition, the new subsection 102(b)
of FISA would authorize compensation by the Government to a person providing
information, facilities, or technical assistance at the prevailing rate.
Sec. 3(4) of H.R. 5825 would add a new subsection 102(c) to FISA, new 50
U.S.C. § 1802(c), stating, “Notwithstanding any other provision of law, the President
may designate an official who may authorize electronic surveillance of international
radio communications of a diplomat or diplomatic mission or post of the government
of a foreign country in the United States in accordance with procedures approved by
the Attorney General.”
Sec. 4. Applications for Court Orders
Sec. 4 of H.R. 5825 amends section 104 of FISA, 50 U.S.C. § 1804, dealing
with applications for court orders for electronic surveillance. The new language
would:
12 Current subsection 102(b) of FISA, 50 U.S.C. § 1802(b) provides:
(b) Applications for a court order under this subchapter are authorized if the
President has, by written authorization, empowered the Attorney General to
approve applications to the court having jurisdiction under section 103 [1803 of
this title], and a judge to whom an application is made may, notwithstanding any
other law, grant an order, in conformity with section 105 [1805 of this title],
approving electronic surveillance of a foreign power or an agent of a foreign
power for the purpose of obtaining foreign intelligence information, except that
the court shall not have jurisdiction to grant any order approving electronic
surveillance directed solely as described in paragraph (1)(A) of subsection (a) of
this section unless such surveillance may involve the acquisition of
communications of any United States person.

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CRS-10
! under Sec. 4(1)(A) of the bill, strike the requirements in subsections
104(a)(6), (9), and (11) of FISA, 50 U.S.C. §§ 1804(a)(6), (9), and
(11),13 thereby eliminating three categories of information currently
required to be included in applications for FISC orders authorizing
electronic surveillance for foreign intelligence purposes.
! under Sec. 4(1)(B) of the bill, redesignate subsections 104(a)(7), (8)
and (10) of FISA, 50 U.S.C. §§ 1804(a)(7), (8), and (10), as
subsections 104(a)(6), (7) and (8), 50 U.S.C. §§ 1804(a)(6), (7), and
(8).
! under Sec. 4(1)(C)(i) of the bill, amend the introductory language in
the newly redesignated subsection 104(a)(6), 50 U.S.C. § 1804(a)(6),
to require that an application for a court order under section 104 of
FISA, 50 U.S.C. § 1804, include “a certification or certifications by
the Assistant to the President for National Security Affairs or an
executive branch official designated by the President to authorize
electronic surveillance for foreign intelligence purposes”.14
13 Under current law, Section 104 of FISA, 50 U.S.C. § 1804, requires the federal officer
seeking an order approving electronic surveillance under this section to make an application
to a FISC judge in writing under oath or affirmation. The application must be approved by
the Attorney General based upon his finding that it satisfies the criteria and requirements
of such application as set forth in FISA. Current subsections 104(a)(6), (9), and (11) of
FISA, 50 U.S.C. §§ 1804(a)(6), (9), and (11), respectively, require that the application
include:
(6) a detailed description of the nature of the information sought and the type of
communications or activities to be subjected to the surveillance;
(9) a statement of the facts concerning all previous applications that have been
made to any judge under this subchapter involving any of the persons, facilities,
or places specified in the application, and the action taken on each previous
application;
(11) whenever more than one electronic, mechanical or other surveillance device
is to be used with respect to a particular proposed electronic surveillance, the
coverage of the devices involved and what minimization procedures apply to
information acquired by each device.
14 Before amendment by Sec. 4(1)(C) of H.R. 5825, current subsection 104(a)(7) of FISA,
50 U.S.C. § 1804(a)(7) (redesignated 104(a)(6) of FISA, 50 U.S.C. § 1804(a)(6), by Sec.
4(1)(B) of H.R. 5825) requires that an application for a court order for electronic
surveillance under section 104 of FISA, 50 U.S.C.§ 1804, is to include:
(7) a certification or certifications by the Assistant to the President for National
Security Affairs or an executive branch official or officials designated by the
President from among those executive officers employed in the area of national
security or defense and appointed by the President with the advice and consent
of the Senate —
(A) that the certifying official deems the information sought to be foreign
(continued...)

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CRS-11
! under Sec. 4(1)(C)(ii) of the bill, amend redesignated subsection
104(a)(6)(C) of FISA, new 50 U.S.C. § 1804(a)(6)(C) (previously
subsection 104(a)(7)(C) of FISA, current 50 U.S.C. §
1804(a)(7)(C)), to add “and” at the end of it.
! under Sec. 4(1)(C)(iii) of the bill, strike redesignated subsections
104(a)(6)(D) and (E) of FISA, new 50 U.S.C. §§ 1804(a)(6)(D) and
(E) (previously subsections 104(a)(7)(D) and (E) of FISA, current 50
U.S.C. §§ 1804(a)(7)(D) and (E)), and replace them with a new
subsection 104(a)(6)(D) of FISA, new 50 U.S.C. § 1804(a)(6)(D),
which would require the certification or certifications by the
Assistant to the President for National Security Affairs or an
executive branch official designated by the President to authorize
electronic surveillance for foreign intelligence purposes to include
“a statement of the basis for the certification that the information
sought is the type of foreign intelligence information designated.”15
! under Sec. 4(1)(D) of the bill, amend redesignated subsection
104(a)(7) of FISA, new 50 U.S.C. § 1804(a)(7) (previously
subsection 104(a)(8), current 50 U.S.C. § 1804(a)(8)), to read “a
14 (...continued)
intelligence information;
(B) that a significant purpose of the surveillance is to obtain foreign
intelligence information;
(C) that such information cannot reasonably be obtained by normal
investigative techniques;
(D) that designates the type of foreign intelligence information being
sought according to the categories described in section 101(e) [1801(e) of
this title]; and
(E) including a statement of the basis for the certification that —
(i) the information sought is the type of foreign intelligence
information designated; and
(ii) such information cannot reasonably be obtained by normal
investigative techniques[.]
15 As so amended, newly redesignated subsection 104(a)(6) of FISA, 50 U.S.C. § 1804,
would require an application for a court order authorizing electronic surveillance under
section 104 of FISA, 50 U.S.C. § 1804 to include:
(6) a certification or certifications by the Assistant to the President for National
Security Affairs or an executive branch official designated by the President to
authorize electronic surveillance for foreign intelligence purposes —
(A) that the certifying official deems the information sought to be foreign
intelligence information;
(B) that a significant purpose of the surveillance is to obtain foreign
intelligence information;
(C) that such information cannot reasonably be obtained by normal
investigative techniques; and
(D) including a statement of the basis for the certification that the
information sought is the type of foreign intelligence information
designated[.]

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CRS-12
statement whether physical entry is required to effect the
surveillance; and”. Prior to this amendment, this subsection also
required “a statement of the means by which the surveillance will be
effected”.
! under Sec. 4(1)(E) of the bill, amend redesignated subsection
104(a)(8) of FISA, new 50 U.S.C. § 1804(a)(8) (previously
subsection 104(a)(10), current 50 U.S.C. § 1804(a)(10)), to replace
the “; and” at the end of the subsection with “.”
! under Sec. 4(2) of the bill, strike subsection 104(b) of FISA, 50
U.S.C. § 1804(b) (dealing with exclusion of certain informational
requirements from applications for FISC orders authorizing
electronic surveillance of certain types of foreign powers), and,
under Sec. 4(3) of the bill, redesignate subsections 104(c), (d), and
(e) of FISA, 50 U.S.C. §§ 1804(c), (d), and(e), as subsections
104(b), (c), and (d), new 50 U.S.C. §§ 1804(b), (c), and (d),
respectively.16
16 Current subsections 104(b), (c), (d), and (e) of FISA, 50 U.S.C. Secs. 1804(b), (c), (d), and
(e), provide:
(b) Exclusion of certain information respecting foreign power targets
Whenever the target of the electronic surveillance is a foreign power, as
defined in section 101 (a)(1), (2), or (3) [1801(a)(1), (2), or (3) of this title], and
each of the facilities or places at which the surveillance is directed is owned,
leased, or exclusively used by that foreign power, the application need not
contain the information required by paragraphs (6), (7)(E), (8), and (11) of
subsection (a) of this section, but shall state whether physical entry is required
to effect the surveillance and shall contain such information about the
surveillance techniques and communications or other information concerning
United States persons likely to be obtained as may be necessary to assess the
proposed minimization procedures.
(c) Additional affidavits or certifications
The Attorney General may require any other affidavit or certification from
any other officer in connection with the application.
(d) Additional information
The judge may require the applicant to furnish such other information as may be
necessary to make the determinations required by section 105 [1805 of this title].
(e) Personal review by Attorney General
(1)
(A) Upon written request of the Director of the Federal Bureau of
Investigation, the Secretary of Defense, the Secretary of State, or the
Director of National Intelligence, the Attorney General shall personally
review under subsection (a) of this section an application under that
subsection for a target described in section 102(b)(2) [1801(b)(2) of this
title].
(B) Except when disabled or otherwise unavailable to make a request
referred to in subparagraph (A), an official referred to in that subparagraph
(continued...)

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CRS-13
Sec. 5. Issuance of an Order
Sec. 5 amends section 105 of FISA, 50 U.S.C. § 1805, dealing with the
requirements for issuance of an FISC order for electronic surveillance.
Sec. 5(1) addresses provisions which deal with the necessary findings that a
FISC judge must make in issuing an ex parte order approving an application for a
court order authorizing electronic surveillance under Sec. 105 of FISA, 50 U.S.C. §
1805. Sec. 5(1)(A) of the bill would strike subsection 105(a)(1) of FISA, 50 U.S.C.
§ 1805(a)(1).17 Under Sec. 5(1)(B) of the bill, subsections 105(a)(2)-(5) of FISA
16 (...continued)
may not delegate the authority to make a request referred to in that
subparagraph.
(C) Each official referred to in subparagraph (A) with authority to make a
request under that subparagraph shall take appropriate actions in advance
to ensure that delegation of such authority is clearly established in the event
such official is disabled or otherwise unavailable to make such request.
(2)
(A) If as a result of a request under paragraph (1) the Attorney General
determines not to approve an application under the second sentence of
subsection (a) of this section for purposes of making the application under
this section, the Attorney General shall provide written notice of the
determination to the official making the request for the review of the
application under that paragraph. Except when disabled or otherwise
unavailable to make a determination under the preceding sentence, the
Attorney General may not delegate the responsibility to make a
determination under that sentence. The Attorney General shall take
appropriate actions in advance to ensure that delegation of such
responsibility is clearly established in the event the Attorney General is
disabled or otherwise unavailable to make such determination.
(B) Notice with respect to an application under subparagraph (A) shall set
forth the modifications, if any, of the application that are necessary in order
for the Attorney General to approve the application under the second
sentence of subsection (a) of this section for purposes of making the
application under this section.
(C) Upon review of any modifications of an application set forth under
subparagraph (B), the official notified of the modifications under this
paragraph shall modify the application if such official determines that such
modification is warranted. Such official shall supervise the making of any
modification under this subparagraph. Except when disabled or otherwise
unavailable to supervise the making of any modification under the
preceding sentence, such official may not delegate the responsibility to
supervise the making of any modification under that preceding sentence.
Each such official shall take appropriate actions in advance to ensure that
delegation of such responsibility is clearly established in the event such
official is disabled or otherwise unavailable to supervise the making of
such modification.
17 Current section 105(a) of FISA, 50 U.S.C. § 1805(a), deals with the necessary findings
that a FISC judge must make in an ex parte order approving an application under section 104
of FISA, 50 U.S.C. § 1804, authorizing electronic surveillance. Under current section
(continued...)

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CRS-14
would be redesignated subsections 105(a)(1)-(4) of FISA, 50 U.S.C. Secs.
1805(a)(1)-(4), respectively.
Subsection 105(c)(1) of FISA, 50 U.S.C. § 1805(c)(1), requires that an order
approving electronic surveillance under Section 105 of FISA, 50 U.S.C. § 1805, must
include certain specifications and sets out those specifications.18 Sec. 5(2) of the bill
would amend subsection 105(c)(1) of FISA, 50 U.S.C. § 1805(c)(1) to add “and” at
the end of subparagraph 105(c)(1)(B) of FISA, 50 U.S.C. § 1805(c)(1)(B); delete
subparagraphs 105(c)(1)(C), (D) and (F) of FISA, 50 U.S.C. §§ 1805(c)(1)(C), (D),
and (F), and redesignate subparagraph 105(c)(1)(E) of FISA, 50 U.S.C. §
1805(c)(1)(E), as subparagraph 105(c)(1)(C), new 50 U.S.C. § 1805(c)(1)(C).
17 (...continued)
105(a)(1) of FISA, 50 U.S.C. § 1805(a)(1), the FISC judge must find, in part, that “the
President has authorized the Attorney General to approve applications for electronic
surveillance for foreign intelligence information.”
18 Current section 105(c)(1) of FISA, 50 U.S.C. § 1805(c)(1), provides:
(c) Specifications and directions of orders
(1) Specifications
An order approving an electronic surveillance under this section shall specify —
(A) the identity, if known, or a description of the specific target of the
electronic surveillance identified or described in the application
pursuant to section 104(a)(3) [1804(a)(3) of this title];
(B) the nature and location of each of the facilities or places at which
the electronic surveillance will be directed, if known;
(C) the type of information sought to be acquired and the type of
communications or activities to be subjected to the surveillance;
(D) the means by which the electronic surveillance will be effected
and whether physical entry will be used to effect the surveillance;
(E) the period of time during which the electronic surveillance is
approved; and
(F) whenever more than one electronic, mechanical, or other
surveillance device is to be used under the order, the authorized
coverage of the devices involved and what minimization procedures
shall apply to information subject to acquisition by each device.
As amended, subsection 105(c)(1) would provide:
(c) Specifications and directions of orders
(1) Specifications
An order approving an electronic surveillance under this section shall specify —
(A) the identity, if known, or a description of the specific target of the
electronic surveillance identified or described in the application
pursuant to section 104(a)(3) [1804(a)(3) of this title];
(B) the nature and location of each of the facilities or places at which
the electronic surveillance will be directed, if known; and
(C) the period of time during which the electronic surveillance is
approved.

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CRS-15
Current subsection 105(d) of FISA, 50 U.S.C. § 1805(d), deals with exclusion
of certain information respecting foreign power targets from the ex parte order
authorizing electronic surveillance under this section.19 Sec. 5(3) of the bill strikes
subsection 105(d) of FISA, 50 U.S.C. § 1805(d); and, under Sec. 5(4) of the bill,
redesignates subsections 105(e)-(i) of FISA, 50 U.S.C. §§ 1805(e)-(i), as subsections
105(d)-(h) of FISA, 50 U.S.C. §§ 1805(d)-(h).
Under Sec. 5(5)(A) of the bill, pursuant to new subsection 105(d)(1) of FISA,
new 50 U.S.C. § 1805(d)(1), an order under this section may approve electronic
surveillance for up to one year.20
Under Sec. 5(5)(B) of the bill, new subsection 105(d)(2) of FISA, new 50
U.S.C. § 1805(d)(2), provides that extensions of orders for electronic surveillance
under Section 105 may be granted for up to one year upon an application for an
19 Current section 105(d) of FISA, 50 U.S.C. § 1805(d), provides:
(d) Exclusion of certain information respecting foreign power targets
Whenever the target of the electronic surveillance is a foreign power, as defined
in section 101(a)(1), (2), or (3) [1801(a)(1), (2), or (3) of this title], and each of
the facilities or places at which the surveillance is directed is owned, leased, or
exclusively used by that foreign power, the order need not contain the
information required by subparagraphs (C), (D), and (F) of subsection (c)(1) of
this section, but shall generally describe the information sought, the
communications or activities to be subjected to the surveillance, and the type of
electronic surveillance involved, including whether physical entry is required.
Subsections 101(a)(1), (2), or (3) of FISA, 50 U.S.C. §§ 1801(a)(1), (2), or (3) define
“foreign power” to mean a foreign government or any component thereof, whether or not
recognized by the United States; a faction of a foreign nation or nations, not substantially
composed of United States persons; or an entity that is openly acknowledged by a foreign
government or governments to be directed and controlled by such foreign government or
governments, respectively. Subparagraphs 105(c)(1)(C), (D), and (F) 50 U.S.C. §§
1805(c)(1)(C), (D), and (F), are deleted by Sec. 5(2)(B) of the bill.
20 Current section 105(e)(1) of FISA, 50 U.S.C. § 1805(e)(1) (which is redesignated section
105(d)(1) of FISA, 50 U.S.C. § 1805(d)(1) by H.R. 5825, Sec. 5(5)(A)), provides:
(e) Duration of order; extensions; review of circumstances under which
information was acquired, retained or disseminated
(1) An order issued under this section may approve an electronic
surveillance for the period specified in the application or for ninety days,
whichever is less, except that (A) an order under this section shall approve
an electronic surveillance targeted against a foreign power, as defined in
section 101(a)(1), (2), or (3) [1801(a)(1), (2), or (3) of this title], for the
period specified in the application or for one year, whichever is less, and
(B) an order under this chapter for a surveillance targeted against an agent
of a foreign power who is not a United States person may be for the period
specified in the application or for 120 days, whichever is less.

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CRS-16
extension and new findings made in the same manner as required for the original
order.21
Under Sec. 5(6) of the bill, redesignated subsection 105(e) of FISA, new 50
U.S.C. § 1805(e) (under current law, subsection 105(f) of FISA, 50 U.S.C. §
1805(f)), provides authority for the Attorney General to authorize emergency
employment of electronic surveillance if specific requirements are met. Under these
requirements, the Attorney General must (1) determine 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) determine that the factual basis for issuance of an order
under this title to approve such surveillance exists; (3) inform a FISC judge at the
time of such authorization that the decision has been made to employ emergency
electronic surveillance; and (4) make an application in accordance with this title to
a FISC judge, as soon as practicable, but not more than 120 hours after the official
authorizes such surveillance. Under current subsection 105(f) of FISA, 50 U.S.C. §
1805(f), the Attorney General’s determinations in (1) and (2) above must be
“reasonable,” and an application for a FISC order authorizing the electronic
surveillance must be made within 72 hours after the emergency electronic
surveillance is authorized, rather than 120 hours as provided in the amended section
under Sec. 5(6) of the bill. Sec. 5(6) also makes some non-substantive structural
changes to the section.
Under the amendments in Sec. 5(6) of the bill to redesignated subsection 105(e)
of FISA, 50 U.S.C. § 1805(e), if the Attorney General authorizes such emergency
employment of electronic surveillance, he must 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 120 hours from the time
of authorization by the Attorney General, whichever is earliest. If 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
21 Current section 105(e)(2) of FISA, 50 U.S.C. § 1805(e)(2) (which is redesignated section
105(d)(2) of FISA, 50 U.S.C. § 1805(d)(2) by Sec. 5(5)(B) of H.R. 5825), reads:
(2) Extensions of an order issued under this subchapter 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, except that
(A) an extension of an order under this chapter for a surveillance targeted against
a foreign power, as defined in section 101(a)(5) or (6) [1801(a)(5) or (6) of this
title], or against a foreign power as defined in section 101(a)(4) [1801(a)(4) of
this title] that is not a United States person, may be for a period not to exceed one
year if the judge finds probable cause to believe that no communication of any
individual United States person will be acquired during the period, and (B) an
extension of an order under this chapter for a surveillance targeted against an
agent of a foreign power who is not a United States person may be for a period
not to exceed 1 year.

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CRS-17
or evidence derived from such surveillance shall be received in evidence or otherwise
disclosed in any trial, hearing, or other proceeding in or before any court, grand jury,
department, office, agency, regulatory body, legislative committee, or other authority
of the United States, a State, or political subdivision thereof, and no information
concerning any United States person acquired from such surveillance shall
subsequently be used or disclosed in any other manner by Federal officers or
employees without the consent of such person, except with the approval of the
Attorney General if the information indicates a threat of death or serious bodily harm
to any person. A denial of the application made under this subsection may be
reviewed as provided in section 103 of FISA, 50 U.S.C. § 1803. Under current law,
in the absence of a court order approving the electronic surveillance, the surveillance
must terminate when the information sought is obtained, when the application for an
order is denied, or after the expiration of 72 hours from the time of authorization by
the Attorney General, whichever is earlier. The provisions dealing with review of a
denial of an application under this subsection and with limitations on use of the
information gathered in an emergency electronic surveillance, where the application
is denied or the surveillance is terminated and no court order approving the
surveillance is issued, parallel those in current law.
Sec. 5(7) of the bill amends redesignated subsection 105(h) of FISA, new 50
U.S.C. § 1805(h) (current subsection 105(i) of FISA, 50 U.S.C. § 1805(i)), to bar
court action in any court against any provider of a wire or electronic communication
service, landlord, custodian, or other person (including any officer, employee, agent,
or other specified person thereof) that furnishes any information, facilities, or
technical assistance (1) in accordance with a court order or request for emergency
assistance under this Act for electronic surveillance or physical search; or (2) 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 that
does not constitute electronic surveillance. Clause (2) above adds new language to
the existing provision. Thus, under current subsection 105(i), 50 U.S.C. § 1805(i),
no such cause of action lies against those who furnish information, facilities, or
technical assistance in accordance with a court order or request for emergency
assistance under FISA for electronic surveillance or physical search. There is no
parallel bar in current law to court action against those providing such information,
facilities, or technical assistance in response to a certification by the Attorney General
or his designee seeking information, facilities, or technical assistance from such
person that does not constitute electronic surveillance.
Sec. 6. Use of Information
Sec. 6 of H.R. 5825 amends subsection 106 of FISA, 50 U.S.C. § 1806, dealing
with use of information obtained by or derived from electronic surveillance under
title I of FISA. As amended, subsection 106(i) of FISA would provide for
destruction upon recognition of the contents of any communication unintentionally
acquired by an electronic, mechanical, or other surveillance device, under
circumstances in which a person has a reasonable expectation of privacy, a warrant
would be required for law enforcement purposes, and both the sender and all
intended recipients are located within the United States, unless the Attorney General

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CRS-18
determines that the contents contain significant foreign intelligence information or
indicate a threat of death or serious bodily harm to any person.
Sec. 7. Authorization after an Armed Attack
Sec. 7(a) amends section 111 of FISA, 50 U.S.C. § 1811, to authorize electronic
surveillance to acquire foreign intelligence information without a court order for up
to 60 days following an armed attack against the territory of the United States if the
President submits to each member of the congressional intelligence “committee” [It
seems likely that this should be “committees”.] notification of the authorization
under this section. Current law authorizes electronic surveillance without a FISA
court order to acquire foreign intelligence information for up to 15 calendar days after
a declaration of war by Congress.
Sec. 7(b) of the bill amends section 309 of FISA, 50 U.S.C. § 1829, to authorize
physical searches to acquire foreign intelligence information without a court order
for up to 60 days following an armed attach against the territory of the United States
if the President submits to each member of the congressional intelligence
“committee” [Again, it seems likely that this should be “committees”.] notification
of the authorization under this section. Current law authorizes physical searches
without a FISA court order to acquire foreign intelligence information for up to 15
calendar days after a declaration of war by Congress.
Sec. 8. Authorization of Electronic Surveillance
after a Terrorist Attack
Sec. 8(1) of the bill creates a new section 112 of FISA entitled “Authorization
Following A Terrorist Attack Upon the United States.” New subsection 112 (a)
permits the President, acting through the Attorney General, to authorize electronic
surveillance without a FISA order approving such surveillance, for a period not to
exceed 45 days following a terrorist attack against the United States if the President
submits a notification to each member of the congressional intelligence committees
and a FISC judge that (1) the United States has been the subject of a terrorist attack;
and (2) identifies the terrorist organizations or affiliates of terrorist organizations
believed to be responsible for the terrorist attack.
Under Sec. 8(1) of the bill, new subsection 112(b) of FISA provides that, subject
to subsection 112(d) (which prohibits the President from authorizing electronic
surveillance under section 112 until the Attorney General approves applicable
minimization procedures), at the end of the 45 day period described in new
subsection 112(a) of FISA, and every 45 days thereafter, the President may submit
a subsequent notification to the congressional intelligence committees and to a FISC
judge that the circumstances of the terrorist attack for which the President submitted
a subsection 112(a) certification “require the President to continue the authorization
of electronic surveillance under this section for an additional 45 days.” After each
subsequent certification, the President “shall be authorized to conduct electronic
surveillance under this section for an additional 45 days.”

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CRS-19
Sec. 8(1) of the bill creates a new subsection 112(c) of FISA dealing with
electronic surveillance of individuals. Under this new subsection, the President, or
an official designated by the President to authorize electronic surveillance, may only
conduct electronic surveillance of a person under this subsection when the President
or such official determines that (1) there is a reasonable belief that such person is
communicating with a terrorist organization or an affiliate of a terrorist organization
that is reasonably believed to be responsible for the terrorist attack; and (2) the
information obtained from the electronic surveillance may be foreign intelligence
information.
Under new subsection 112(d) of FISA, as created by Sec. 8(1) of H.R. 5825, the
President may not authorize electronic surveillance under section 112 until the
Attorney General approves applicable minimization procedures.
New subsection 112(e) of FISA, as created by Sec. 8(1) of the bill, addresses
electronic surveillance of U.S. persons. It provides that, notwithstanding new
subsection 112(b) of FISA, the President may not authorize electronic surveillance
of a United States person under section 112 of FISA without a FISC order for a
period of more than 90 days unless the President, acting through the Attorney
General, submits a certification to each member of the congressional intelligence
committees that “(1) the continued electronic surveillance of the United States person
is vital to the national security of the United States; (2) describes the circumstances
that have prevented the Attorney General from obtaining an order under this title for
continued surveillance; (3) describes the reasons for believing the United States
person is affiliated with or in communication with a terrorist organization or affiliate
of a terrorist organization that is reasonably believed to be responsible for the
terrorist attack; and (4) describes the foreign intelligence information derived from
the electronic surveillance conducted under this section.”
Under Sec. 8(1) of the bill, new subsection 112(f) of FISA permits information
obtained pursuant to electronic surveillance under subsection 112 to be used to obtain
an order authorizing subsequent electronic surveillance under FISA.
New subsection 112(g), as added by Sec. 8(1) of the bill, provides that, not later
than 14 days after the date on which the President notifies each member of the
congressional intelligence committees and a FISC judge of his intent to permit
electronic surveillance without a FISA order for 45 days following a terrorist attack
against the United States (under subsection 112(a)), and every 30 days thereafter until
such surveillance ceases to be authorized by the President, the President must submit
to each member of the congressional intelligence committees a report on the
electronic surveillance conducted under section 112, including (1) a description of
each target of electronic surveillance under this section; and (2) the basis for
believing that each target is in communication with a terrorist organization or an
affiliate of a terrorist organization.
New subsection 112(h) of FISA, added by Sec. 8(1) of H.R. 5825, defines the
term “congressional intelligence committees” to mean the Permanent Select
Committee on Intelligence of the House of Representatives and the Select Committee
on Intelligence of the Senate.

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Sec. 8(2) of the bill adds new section 112 to the table of contents of FISA.
Sec. 9. Congressional Oversight
Sec. 9 of H.R. 5825 deals with congressional oversight. Sec. 9(a)(1) of the bill
amends section 108(a)(1) of FISA, 50 U.S.C. § 1808(a)(1), to require that the
Attorney General, on a semiannual basis, fully inform each member of the House
Permanent Select Committee on Intelligence and the Senate Select Committee on
Intelligence, and the Committee on the Judiciary of the Senate, concerning all foreign
intelligence electronic surveillance. (Italics reflect new language.) Sec. 9(a)(2) of the
bill adds a new subsection 108(a)(2)(D) of FISA, 50 U.S.C. § 1808(a)(2)(D) which
requires that each of these semiannual reports include a description of “the authority
under which the electronic surveillance is conducted.” Sec. 9(a)(3) of H.R. 5825
adds a new subsection (3) to the end of subsection 108(a) of FISA, 50 U.S.C. §
1808(a)(3), which requires each report submitted under this subsection 108(a) of
FISA, 50 U.S.C. § 1808(a) to include “reports on electronic surveillance conducted
without a court order.”22
22 Current section 108(a) of FISA, 50 U.S.C. § 1808(a), provides:
§ 1808. Report of Attorney General to Congressional committees; limitation on
authority or responsibility of information gathering activities of Congressional
committees; report of Congressional committees to Congress
(a)
(1) On a semiannual basis the Attorney General shall fully inform the
House Permanent Select Committee on Intelligence and the Senate Select
Committee on Intelligence, and the Committee on the Judiciary of the
Senate, concerning all electronic surveillance under this subchapter.
Nothing in this subchapter shall be deemed to limit the authority and
responsibility of the appropriate committees of each House of Congress to
obtain such information as they may need to carry out their respective
functions and duties.
(2) Each report under the first sentence of paragraph (1) shall include a
description of —
(A) the total number of applications made for orders and extensions
of orders approving electronic surveillance under this subchapter
where the nature and location of each facility or place at which the
electronic surveillance will be directed is unknown;
(B) each criminal case in which information acquired under this
chapter has been authorized for use at trial during the period covered
by such report; and
(C) the total number of emergency employments of electronic
surveillance under section 105(f) [1805(f) of this title] and the total
number of subsequent orders approving or denying such electronic
surveillance.
As amended by Sec. 10(4) of H.R. 5825, the reference to section 105(f), 50 U.S.C. §
1805(f), would be replaced by a reference to new section 105(e), new 50 U.S.C. § 1805(e),
to be consistent with changes in Sec. 5(4) of the bill.

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Sec. 9(b) of H.R. 5825 amends Section 501 of the National Security Act of
1947, 50 U.S.C. § 413,23 to require, under subsection 501(a)(1) of the National
Security Act, 50 U.S.C. § 413(a)(1), that the President shall ensure that each member
of the congressional intelligence committees is kept fully and currently informed of
the intelligence activities of the United States; and, under section 501(b) of the
National Security Act, 50 U.S.C. § 413(b), that the President shall ensure that any
illegal intelligence activity is reported promptly to each member of the congressional
intelligence committees, as well as any corrective action that has been taken or is
planned in connection with such illegal activity. (Italics reflect new language.)
23 Current section 501 of the National Security Act of 1947, 50 U.S.C. § 413, provides:
§ 413. General Congressional oversight provisions
(a) Reports to Congressional committees of intelligence activities and anticipated
activities
(1) The President shall ensure that the congressional intelligence
committees are kept fully and currently informed of the intelligence
activities of the United States, including any significant anticipated
intelligence activity as required by this subchapter.
(2) Nothing in this subchapter shall be construed as requiring the approval
of the congressional intelligence committees as a condition precedent to the
initiation of any significant anticipated intelligence activity.
(b) Reports concerning illegal intelligence activities
The President shall ensure that any illegal intelligence activity is reported
promptly to the congressional intelligence committees, as well as any corrective
action that has been taken or is planned in connection with such illegal activity.
(c) Procedures for reporting information
The President and the congressional intelligence committees shall each establish
such procedures as may be necessary to carry out the provisions of this
subchapter.
(d) Procedures to protect from unauthorized disclosure
The House of Representatives and the Senate shall each establish, by rule or
resolution of such House, procedures to protect from unauthorized disclosure all
classified information, and all information relating to intelligence sources and
methods, that is furnished to the intelligence committees or to Members of
Congress under this subchapter. Such procedures shall be established in
consultation with the Director of National Intelligence. In accordance with such
procedures, each of the congressional intelligence committees shall promptly call
to the attention of its respective House, or to any appropriate committee or
committees of its respective House, any matter relating to intelligence activities
requiring the attention of such House or such committee or committees.
(e) Construction of authority conferred
Nothing in this Act shall be construed as authority to withhold information from
the congressional intelligence committees on the grounds that providing the
information to the intelligence committees would constitute the unauthorized
disclosure of classified information or information relating to intelligence
sources and methods.
(f) “Intelligence activities” defined
As used in this section, the term “intelligence activities” includes covert actions
as defined in section 413b(e) of this title, and includes financial intelligence
activities.

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Sec. 10. Technical and Conforming Amendments
Sec. 10 of H.R. 5825 makes technical and conforming amendments to FISA.
Under Sec. 10(1) of the bill, subsection 102(a)(3)(A) of FISA, 50 U.S.C. §
1802(a)(3)(A), would be amended to strike “101(h)(4) and”. As amended by H.R.
5825, subsection 102(a)(3) of FISA, 50 U.S.C. § 1802(a)(3), would then read,
(3) The Attorney General shall immediately transmit under seal to the court
established under section 103(a) [1803(a) of this title] a copy of his certification.
Such certification shall be maintained under security measures established by the
Chief Justice with the concurrence of the Attorney General, in consultation with
the Director of National Intelligence, and shall remain sealed unless —
(A) an application for a court order with respect to the surveillance is made
under sections [sic?] 104 [1804 of this title]; or
(B) the certification is necessary to determine the legality of the
surveillance under section 106(f) [1806(f) of this title].
Sec. 10(2) of H.R. 5825 would amend section 105(a)(5) of FISA, 50 U.S.C. §
1805(a)(5), by replacing “104(a)(7)(E)” with “104(a)(6)(D)”, and replacing “104(d)”
with “104(c)”. Section 105(a)(5) of FISA, 50 U.S.C. § 1805(a)(5), would then read:
(a) Necessary findings
Upon an application made pursuant to section 104 [1804 of this title], the judge
shall enter an ex parte order as requested or as modified approving the electronic
surveillance if he finds that —
. . .
(5) the application which has been filed contains all statements and certifications
required by section 104 [1804 of this title] and, if the target is a United States
person, the certification or certifications are not clearly erroneous on the basis
of the statement made under section 104(a)(6)(D) [1804(a)(6)(D) of this title]
and any other information furnished under section 104(c) [1804(c) of this title].
This change would conform with amendments made in Secs. 4(1)(B), 4(1)(C)(ii) and
4(1)(C)(iii) of H.R. 5825.
Sec. 10(3)(A) of H.R. 5825 would amend subsection 106(j) of FISA, 50 U.S.C.
§ 1806(j) by replacing “105(e)” in the matter preceding paragraph 106(j)(1) with
“105(d)”. As amended by Sec. 10(3)(A) of H.R. 5825, the introductory language
prior to subsection 106(j)(1) of FISA, 50 U.S.C. § 1806(j)(1), would then read,
(j) Notification of emergency employment of electronic surveillance; contents;
postponement, suspension or elimination
If an emergency employment of electronic surveillance is authorized under
section 105(d) [1805(d) of this title] and a subsequent order approving the
surveillance is not obtained, the judge shall cause to be served on any United
States person named in the application and on such other United States persons
subject to electronic surveillance as the judge may determine in his discretion it
is in the interest of justice to serve, notice of —
. . . .

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The change would conform with amendments in Secs. 5(3) and 5(4) of the bill.
In subsection 106(k)(2) of FISA, 50 U.S.C. § 1806(k)(2), Sec. 10(3)(B) of H.R.
5825 would replace “104(a)(7)(B)” with “104(a)(6)(B)”. As amended by Sec.
10(3)(B) of the bill, subsection 106(k)(2) of FISA, 50 U.S.C. § 1806(k)(2) would
then provide, “(2) Coordination authorized under paragraph (1) shall not preclude
the certification required by section 104(a)(6)(B) [1804(a)(7)(B) of this title] or the
entry of an order under section 105 [1805 of this title].” This change would conform
with the amendments made in Secs. 4(1)(B), 4(1)(C)(ii) and 4(1)(C)(iii) of H.R.
5825.
Sec. 10(4) of H.R. 5825 would amend subsection 108(a)(2)(C) of FISA, 50
U.S.C. § 1808(a)(2)(C) to strike “105(f)” and insert in its stead “105(e)”. In so
doing, the reference is made consistent with the redesignation, in Sec. 5(4) of H.R.
5825, of current subsection 105(f) of FISA, 50 U.S.C. § 1805(f), as subsection 105(e)
of FISA, new 50 U.S.C. § 1805(e).

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