Order Code RL34277
The Foreign Intelligence Surveillance Act:
Comparison of House-Passed H.R. 3773, S. 2248
as Reported By the Senate Select Committee on
Intelligence, and S. 2248 as Reported Out of the
Senate Judiciary Committee
December 6, 2007
Elizabeth B. Bazan
Legislative Attorney
American Law Division

---

The Foreign Intelligence Surveillance Act:
Comparison of House-Passed H.R. 3773, S. 2248
as Reported By the Senate Select Committee on
Intelligence, and S. 2248 as Reported Out of
the Senate Judiciary Committee
Summary
On November 15, 2007, the House of Representatives passed H.R. 3773, the
RESTORE Act of 2007. On October 26, 2007, Senator Rockefeller reported S. 2248,
the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2007 or the
FISA Amendment Act of 2007, an original bill, from the Senate Select Committee
on Intelligence. S. 2248 was referred to the Senate Judiciary Committee on
November 1, 2007. On November 16, 2007, S. 2248 was reported out of the Senate
Judiciary Committee by Senator Leahy with an amendment in the nature of a
substitute. Each bill includes amendments to the Foreign Intelligence Surveillance
Act. This report provides a side by side comparison of the provisions of these three
measures. A glossary of FISA terms from section 101 of FISA, 50 U.S.C. § 1801 is
attached.

---

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Glossary of FISA Terms from 50 U.S.C. § 1801 . . . . . . . . . . . . . . . . . . . . . 56
List of Tables
Table 1. Comparison of H.R. 3773 as passed by the House, S. 2248 as Reported by
the Senate Select Committee on Intelligence, and S. 2248 as Reported Out of
the Senate Judiciary Committee with an Amendment in the Nature of a
Substitute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

---

The Foreign Intelligence Surveillance Act:
Comparison of House-Passed H.R. 3773,
S. 2248 as Reported By the Senate
Select Committee on Intelligence,
and S. 2248 as Reported Out of
the Senate Judiciary Committee
Introduction
During the 110th Congress, several House and Senate committees have engaged
in oversight activities, including hearings and requests for expeditious production of
documents and information regarding the Administration’s warrantless foreign
intelligence surveillance programs, as possible changes to the Foreign Intelligence
Surveillance Act of 1978, as amended, were explored. In July 2007, an unclassified
summary of the National Intelligence Estimate on “The Terrorist Threat to the U.S.
Homeland” was released. It expressed the judgment, in part, that the U/S. Homeland
will face a persistent and evolving threat over the next three years, the main threat
coming from Islamic terrorist groups and cells, particularly al Qai’da. On August 2,
2007, the Director of National Intelligence (DNI) released a statement on
“Modernization of the Foreign Intelligence Surveillance Act.” In his statement,
Admiral McConnell viewed such modernization as necessary to respond to
technological changes and to meet the Nation’s current intelligence collection needs.
He deemed it essential for the Intelligence Community to provide warning of threats
to the United States. He perceived two critically needed changes. First, he stated that
a court order should not be required for gathering foreign intelligence from foreign
targets located overseas, although he did agree to court review of related procedures
after commencement of the needed collection. Second, he contended that liability
protection was needed for those who furnished aid to the government in carrying out
its foreign intelligence collection efforts .
On August 5, 2007, the Protect America Act of 2007, P.L. 110-55, was enacted
into law with a 180 day sunset provision, providing a temporary solution to concerns
raised by the Director of National Intelligence. Both the House and the Senate have
considered or are considering possible legislation to provide a longer-term statutory
approach to these concerns. On November 15, 2007, the House of Representatives
passed H.R. 3773, the Responsible Electronic Surveillance That is Overseen,
Reviewed, and Effective Act of 2007 or the RESTORE Act of 2007. On October 26,
2007, Senator Rockefeller reported S. 2248, the Foreign Intelligence Surveillance Act
of 1978 Amendments Act of 2007 or the FISA Amendment Act of 2007, an original
bill, from the Senate Select Committee on Intelligence. S. 2248 was referred to the
Senate Judiciary Committee on November 1, 2007. On November 16, 2007, S. 2248

---

CRS-2
was reported out of the Senate Judiciary Committee by Senator Leahy with an
amendment in the nature of a substitute. Each bill includes amendments to the
Foreign Intelligence Surveillance Act.
This report provides a side by side comparison of the provisions of these three
measures, using H.R. 3773 as the basis for the comparison. As title I of FISA
defines a number of key terms critical to understanding the import of the bills’
language, a glossary of FISA terms as defined in section 101 of FISA, 50 U.S.C. §
1801 is attached to assist in understanding the effect of these measures.

---

CRS-3
Table 1. Comparison of H.R. 3773 as passed by the House,
S. 2248 as Reported by the Senate Select Committee on Intelligence,
and S. 2248 as Reported Out of the Senate Judiciary Committee
with an Amendment in the Nature of a Substitute
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
Short Title — “Responsible Electronic
Short Title — “Foreign Intelligence Surveillance
Short Title — “Foreign Intelligence Surveillance
Surveillance That is Overseen, Reviewed, and
Act of 1978 Amendments Act of 2007” or the
Act of 1978 Amendments Act of 2007” or the
Effective Act of 2007” or “RESTORE Act of
“FISA Amendments Act of 2007”
“FISA Amendments Act of 2007”
2007”
No similar provision.
Limitation on Definition of Electronic
No similar provision.
Surveillance: Under section 701 of a new title VII
of FISA, nothing in the definition of “electronic
surveillance” under section 101(f) of FISA, 50
U.S.C. § 1801(f), shall be construed to encompass
surveillance that is targeted in accordance with
proposed title VII of the Foreign Intelligence
Surveillance Act (FISA) at a person reasonably
believed to be located outside the U.S.
No similar provision.
New section 702 of FISA: Definitions. See also
New section 701 of FISA: Definitions.
section 802 of FISA on definitions.
Sec. 2 of the bill: Clarification of electronic
New section 703 of FISA: Permits Attorney
New section 702 of FISA: Permits AG and DNI
surveillance of non-United States persons
General (AG) and the Director of National
to jointly authorize, for up to 1 year, targeting of
outside the United States. Under amended
Intelligence (DNI) to jointly authorize, for up to 1
persons reasonably believed to be outside U.S. to
section 105A of FISA, no court order is needed for
year, targeting of persons reasonably believed to
acquire foreign intelligence information.
electronic surveillance directed at acquisition of
be outside U.S. to acquire foreign intelligence
contents of communications between persons not
information. Such an acquisition:
known to be U.S. persons who are reasonably
believed to be located outside the U.S. regardless

---

CRS-4
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
of whether communication passed through U.S. or
surveillance device is in U.S.
No similar provision.
— may not intentionally target any person known
Same provision as S. 2248 (SSCI version).
at the time of the acquisition to be located in the
U.S.
No similar provision, but see section 105B as
— may not intentionally target a person
— may not intentionally target a person
amended, below.
reasonably believed to be outside the U.S. if the
reasonably believed to be outside the United States
purpose of the acquisition is to target for
if a significant purpose of such acquisition is to
surveillance a particular, known person reasonably
acquire the communications of a specific person
believed to be in the U.S., except in accordance
reasonably believed to be in the U.S., except in
with title I of FISA.
accordance with title I of FISA.
No similar provision.
— must be conducted in a manner consistent with
Same provision as S. 2248 (SSCI version).
the fourth amendment to the U.S. Constitution.
If a communication involving a U.S. person or a
No similar provision.
No similar provision.
person in the U.S. is inadvertently intercepted in
the course of such electronic surveillance, its
contents must be handled in accordance with
minimization procedures adopted by the AG.
Under those procedures, no contents of any
communication to which a U.S. person is a party
shall be disclosed, disseminated, or used for any
purpose or retained for longer than 7 days unless a
court order under section 105 of FISA is obtained
or unless the AG determines that the information
indicates a threat of death or serious bodily harm
to any person.

---

CRS-5
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
No similar provision.
Acquisition under new subsection 703(a) of
Acquisition under new subsection 702(a) of
FISA inside the U.S. of U.S. persons outside the
FISA inside the U.S. of U.S. persons outside the
U.S. If such an acquisition occurs inside the U.S.,
U.S. If such an acquisition constitutes electronic
it may not target a U.S. person reasonably believed
surveillance and occurs inside the U.S., it may not
to be outside the U.S., except in accordance with
intentionally target a U.S. person reasonably
the provisions of title I of FISA.
believed to be outside the U.S., except in
accordance with the procedures under title I of
FISA.
Amended section 105A(b) of FISA,
No similar provision, but see new section 703 of
No similar provision, but see new section 702 of
Communications of Non-United States Persons
FISA procedures for acquiring the communications
FISA procedures for acquiring the communications
Outside of the United States: A Foreign
of certain persons outside the U.S., which permit
of certain persons outside the U.S., which permit
Intelligence Surveillance Court (FISC) order under
the AG and DNI to jointly authorize, for up to 1
the AG and DNI to jointly authorize, for up to 1
section 105 or 105B of FISA or an emergency
year, targeting of persons reasonably believed to
year, targeting of persons reasonably believed to
authorization under section 105 or 105C of FISA is
be outside U.S. to acquire foreign intelligence
be outside U.S. to acquire foreign intelligence
required required for electronic surveillance
information.
information.
targeting a person reasonably believed to be
located outside the U.S. and not a U.S. person
where the surveillance is directed at acquisition of
that person’s communications to collect most types
of foreign intelligence information (as defined in
sections 101(e)(1) or (2)(A) of FISA; see
glossary).
Sec. 3 of the bill, section 105B of FISA, as
New section 703(c)(2) of FISA, restricts the
New section 702(c)(2) restricts the
amended: Additional authorization of
circumstances in which a surveillance device
circumstances in which a surveillance device
acquisitions of communications of non-United
outside the U.S. may be used to intentionally
outside the U.S. may be used to intentionally
States persons located outside the United States
target U.S. persons reasonably believed to be
target U.S. persons reasonably believed to be
who may be communicating with persons inside
outside the U.S. to acquire certain wire and
outside the U.S. to acquire certain wire and
the U.S.
radio communications to and from them. New
radio communications to and from them. New
Pursuant to FISC order, amended section 105B of
section 703(c)(2) of FISA prohibits use of a
section 702(c)(2) of FISA prohibits use of a
FISA permits acquisitions for up to 1 year of
surveillance device outside the U.S. to
surveillance device outside the U.S. to
communications of non-U.S. persons reasonably
intentionally target U.S. persons reasonably
intentionally target U.S. persons reasonably

---

CRS-6
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
believed to be outside the U.S. to collect most
believed to be outside the U.S. to acquire the
believed to be outside the U.S. to acquire the
types of foreign intelligence information (all but
contents of wire and radio communications to and
contents of wire and radio communications to and
information with respect to a foreign power or
from those persons under circumstances where
from those persons under circumstances where
foreign territory that relates to, and if concerning a
there is a reasonable expectation of privacy and a
there is a reasonable expectation of privacy and a
United States person is necessary to the conduct of
warrant would be required for law enforcement
warrant would be required for law enforcement
the foreign affairs of the United States)
purposes within the U.S., unless the FISC finds
purposes within the U.S., unless:
by targeting those persons.
probable cause to believe the targets are foreign
— the FISC has entered an order approving
powers or agents of foreign powers and issues an
electronic surveillance of that U.S. person under
ex parte order as requested or as modified
section 105, or in the case of an emergency
approving the targeting of that person. The
situation, electronic surveillance against the target
probable cause finding must be based upon the
is being conducted in a manner consistent with title
basis of facts submitted in an application by the
I; or
AG or his designee.
— the FISC has entered a order under new section
703(c)(2)(B) of FISA that there is probable cause
to believe that the U.S. person is a foreign power
or an agent of a foreign power;
— the AG has established minimization
procedures for that acquisition that meet the
definition of minimization procedures under
section 101(h); and
— the dissemination provisions of such
minimization procedures for the acquisition have
been approved under new section 702(c)(2)(C).
New section 702(c)(2)(B) permits the AG to
submit to the FISC his determination, together
with any supporting affidavits, that a U.S. person
who is outside the United States is a foreign power
or an agent of a foreign power. The FISC, in
reviewing such a determination, is limited to
whether, on the basis of the facts submitted by the
AG, there is probable cause to believe that the U.S.
person who is outside the U.S. is a foreign power
or an agent of a foreign power. If the FISC

---

CRS-7
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
determines such probable cause exists, it must
issue an order approving the acquisition. Such
order shall be for 90 days, and can be renewed for
additional 90 day periods. If the FISC finds no
probable cause, it shall enter an order so stating
and provide a written statement for the record of
its reasons. The government may appeal such an
order to the FISCR.
Requirements for AG/DNI certification as part
Requirements for AG/DNI certification as
Requirements for AG/DNI certification as
of an application for a FISC order or extension
prerequisite to an acquisition, new section
prerequisite to an acquisition, new section
of an order: Such an application must include a
703(g) of FISA: Before initiation of an
702(g) of FISA: Similar, but not identical,
certification by the DNI and the AG that satisfies
acquisition, the AG and the DNI shall provide,
provisions.
specific requirements. The DNI and the AG must
under oath, a written certification attesting that:
certify:
— the targets are persons reasonably believed to
— there are reasonable procedures in place for
— similar provision to S. 2248 (SSCI version)
be outside the U.S. who may be communicating
determining that the acquisition authorized is
with persons inside the U.S.;
targeted at persons reasonably believed to be
located outside the U.S. and that such procedures
have been approved by, or will promptly be
submitted for approval by, the FISC;
No similar provision.
— the procedures are consistent with the
— similar provision to S. 2248 (SSCI version)
requirements of the fourth amendment to the U.S.
Constitution and do not permit the intentional
targeting of any person who is known at the time
of acquisition to be located in the U.S.;
— the targets are reasonably believed to be
No similar provision, but, under new section
No similar provision, but, under new section
persons that are not U.S. persons;
703(c)(3), within 30 days after enactment of
702(c)(3), within 30 days after enactment of the
proposed title VII of FISA, the AG must submit to
bill, the AG must submit to the FISC the
the FISC the procedures to be used to determine
procedures to be used to determine whether a
whether a target reasonably believed to be outside
target reasonably determined to be outside the U.S.

---

CRS-8
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
the U.S. is a U.S. person. FISC approval of the
is a U.S. person. FISC approval of the procedures
procedures is a prerequisite to their use to make
is a prerequisite to their use to make such a
such a determination.
determination.
The government may appeal an FISC order to the
FISCR where the FISC finds the procedures do not
meet the statutory requirements. Any targeting of
persons reasonably believed to be located outside
the U.S. shall use the procedures approved by the
FISC.
— the acquisition involves obtaining the foreign
— the acquisition involves obtaining the foreign
— similar provision to S. 2248 (SSCI version)
intelligence information from, or with the
intelligence information from or with the
assistance of, a communications service provider
assistance of an electronic communication service
or custodian, or an officer, employee, or agent of
provider;
such service provider or custodian, who has
authorized access to the communications to be
acquired, either as they are transmitted or while
they are stored, or equipment that is being or may
be used to transmit or store such communications;
and
No similar provision.
— the acquisition does not constitute electronic
No similar provision.
surveillance, as limited by section 701;
— a significant purpose of the acquisition is to
— a significant purpose of the acquisition is to
Similar provision to S. 2248 (SSCI version).
obtain foreign intelligence information (as defined
obtain foreign intelligence information; and
in paragraph (1) or (2)(A) of section 101(e)).
An application must also include criteria for
No similar provision.
No similar provision.
determining if such a significant purpose exists.
Such criteria must require consideration of whether
the federal department or agency conducting the
acquisition has sought information on the specific

---

CRS-9
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
U.S. person from, or provided information that
identifies the specific U.S. person to, another
federal department or agency; and whether the
federal department or agency conducting the
acquisition has determined that the specific United
States person has been the subject of ongoing
interest or repeated investigation by a federal
department or agency. Consideration must also be
given to whether the specific United States person
is a natural person.
Such application must also include a description
of —
— the procedures that will be used by the DNI
No similar provision, but the AG/DNI certification
Similar provision to S. 2248 (SSCI version).
and the AG during the duration of the order to
must attest that there are reasonable procedures in
determine that there is a reasonable belief that the
place for determining that the acquisition
targets are non-U.S. persons located outside the
authorized is targeted at persons reasonably
U.S.;
believed to be located outside the U.S. and that
such procedures have been approved by, or will
promptly be submitted for approval by, the FISC.

— the nature of the information sought, including
No similar provision.
No similar provision.
the identity of any foreign power against whom the
acquisition will be directed;
— minimization procedures that meet the
— the minimization procedures to be used with
Similar provision to S. 2248 (SSCI version).
definition of minimization procedures under
respect to such acquisition meet the definition of
section 101(h) to be used with respect to such
minimization procedures under section 101(h); and
acquisition;
have been approved by, or will promptly be
submitted for approval by, the FISC.
— guidelines to be used to ensure that an
No similar provision, but, under new section 703
No provision similar to this provision of H.R.
application is filed under section 104 of FISA, if
of FISA, an acquisition may not intentionally
3773, but new section 702 is similar to section 703
otherwise required by this Act, when a significant
target a person reasonably believed to be outside
of S. 2248 (SSCI version).

---

CRS-10
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
purpose of an acquisition is to acquire the
the U.S. if the purpose of the acquisition is to
communications of a specific U.S. person
target for surveillance a particular, known person
reasonably believed to be located in the U.S.; and
reasonably believed to be in the U.S., except in
accordance with title I of FISA.
No similar provision.
The certification must be supported, as
Similar provision to S. 2248 (SSCI version).
appropriate, by the affidavit of any appropriate
official in the area of national security who is
appointed by the President, by and with the
consent of the Senate; or the head of any element
of the intelligence community.
Such an application is not required to identify the
Such a certification is not required to identify the
specific facilities, places, premises, or property at
specific facilities, places, premises, or property at
which the acquisition of foreign intelligence
which the acquisition will be directed or
information will be directed.
conducted.
No similar provision. Cf., requirements for
Exception to certification requirement where
No similar provision.
emergency authorizations of acquisitions under
immediate government action required: If the
section 105C of FISA as amended by the bill.
AG and the DNI determine that immediate federal
government action is required and time does not
permit the preparation of a certification before
initiation of an acquisition, the AG and the DNI
shall prepare a certification, including such
determination, as soon as possible but in no event
more than 168 hours after the determination is
made.
The AG must transmit a copy of a certification any
supporting affidavit under seal to the FISC as soon
as possible within 5 days after such certification is
made, there to be maintained under security
measures adopted by the Chief Justice of the
United States and the AG, in consultation with the
DNI.

---

CRS-11
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
Conduct of acquisition: Such an acquisition may
Conduct of acquisition: Such an acquisition may
be conducted only in accordance with the AG/DNI
be conducted only in accordance with the AG/DNI
certification; targeting procedures, adopted by the
certification and the required targeting and
AG in consultation with the DNI, and subject to
minimization procedures.
judicial review by the FISC, that are reasonably
designed to ensure that any such acquisition is
limited to targeting persons reasonably believed to
be outside the U.S.; and minimization procedures,
adopted by the AG in consultation with the DNI,
which are consistent with the definition of
minimization procedures under section 101(h) of
FISA and are subject to judicial review by the
FISC.
No similar provision.
Adoption of procedures and submittal to the
Similar provision to S. 2248 (SSCI version).
FISC of targeting procedures, minimization
procedures, and certifications; judicial review:
New section 703 of FISA requires submission to
the FISC of certifications, targeting procedures,
and minimization procedures for judicial review.
— Within 30 days of enactment, the AG must
Similar provision to S. 2248 (SSCI version).
submit to the FISC procedures to be utilized in
determining whether a target reasonably believed
to be outside the U.S. is a U.S. person. These
procedures may only be used upon FISC approval.
Any targeting of persons authorized jointly by the
AG and DNI must utilize these procedures.
No similar provision.
No similar provision.
Transition procedures concerning targeting of
U.S. persons overseas, new section 702(c)(4) of
FISA: Any authorization in effect on the date of
enactment of S. 2248, the FISA Amendments Act
of 2007, under section 2.5 of Executive Order
12333 to intentionally target a U.S. person

---

CRS-12
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
reasonably believed to be located outside the U.S.,
to acquire the contents of a wire or radio
communication sent by or intended to be received
by that U.S. person, shall remain in effect, and
shall constitute a sufficient basis for conducting
such an acquisition of a U.S. person located
outside the U.S., until that authorization expires or
90 days after the date of enactment of the FISA
Amendments Act of 2007, whichever is earlier.
No similar provision.
Adoption and judicial review of targeting
Similar provision to S. 2248 (SSCI version).
procedures: The AG, in consultation with the
DNI, must adopt targeting procedures reasonably
designed to ensure that any acquisition under new
subsection 703(a) of FISA is limited to targeting
persons reasonably believed to be outside the U.S.
The procedures are to be submitted to the FISC by
the AG within 5 days of their adoption or
amendment. The FISC shall review these
procedures to assess whether they meet this
standard.
No similar provision.
Adoption and judicial review of minimization
Similar provision to S. 2248 (SSCI version).
procedures: The AG, in consultation with the
DNI, must adopt minimization procedures for
acquisitions under the joint AG/DNI authority
under new section 703(a). These procedures must
be consistent with the requirements for
minimization procedures in section 101(h) of FISA
(see glossary), and shall be reviewed by the FISC
to assess whether the minimization procedures for
acquisitions meet the section 101(h) standard. The
AG is to submit the minimization procedures and
any amendment thereto to the FISC within 5 days
of adoption or amendment.

---

CRS-13
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
No similar provision.
Judicial review of certifications: Certifications
Similar provision to S. 2248 (SSCI version).
are to be submitted by the AG to the FISC within 5
days after making or amending the certification.
The FISC shall review the certification to
determine whether the certification contains all the
required elements.
If the FISC finds the certification contains all such
required elements and the targeting and
minimization procedures meet the required
standards and are consistent with the fourth
amendment to the U.S. Constitution, the court
must enter an order approving the continued use of
the procedures for the acquisition authorized under
new section 703(a). If the FISC finds any
deficiencies, the court directing the government, at
the government’s election and to the extent
required by the FISC order, to either correct any
deficiency identified by the order within 30 days of
issuance of the order, or to cease the acquisition.
No similar provision.
Appeals of any FISC order to FISCR and
Similar provision to S. 2248 (SSCI version).
petitions for certiorari to the U.S. Supreme
Court: The government may appeal any FISC
order to the Foreign Intelligence Surveillance
Court of Review (FISCR) and may file a petition
for certiorari to the U.S. Supreme Court to review
an FISCR decision. The FISC and the FISCR must
provide a written statement of the reasons for its

---

CRS-14
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
decision. Judicial proceedings shall be as
expeditious as possible.
All petitions are to be filed under seal. Upon the
request of the government, any government
submission or portions thereof which may include
classified information shall be reviewed ex parte
and in camera. Records of such proceedings must
be maintained under security measures adopted by
the Chief Justice of the U.S. in consultation with
the AG and the DNI. A directive or an order
granted under new section 703 of FISA must be
retained for at least 10 years.
New section 703(i) of FISA.
No similar provision.
Continuation of acquisition pending rehearing
No similar provision.
or appeal. Any acquisitions affected by a court
order directing correction of deficiencies or
cessation of an acquisition shall continue during
the pendency of a rehearing by the FISC en banc or
any appeal to the FISCR. See section 109(b) of the
bill creating FISC en banc authority. Section 109
of the bill gives the FISC authority, on its own
initiative, or upon the request of the government or
of a party under sections 501(f) or new 703(h)(4)
or (5) of FISA, to hold a hearing or rehearing en
banc when ordered by a majority of the FISC
judges upon a determination that en banc
consideration is necessary to secure or maintain
uniformity of the court’s decisions, or the
proceeding involves a question of exceptional
importance.

---

CRS-15
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
Temporary Order; appeals. At the request of
No similar provision
No similar provision.
the government, an FISC judge who has denied
an application under amended section 105B of
FISA, may issue a temporary order authorizing
the acquisition in accordance with the denied
application under section 105B of FISA during
the pendency of the appeal from the denial. The
government may appeal the denial of a section
105B application or a temporary order to the
Foreign Intelligence Surveillance Court of Review
(FISCR), and may seek U.S. Supreme Court
review by filing a certiorari petition.
Requirements for FISC order under section
105B(e) of FISA, as amended, approving
application: An order issued by an FISC judge
approving an such an application authorizing the
acquisition of the contents of such
communications must comply with requirements
for the communications service provider; the
federal government; and for the applicant.
Requirements for the communications service
Directives to electronic communications service
Similar provision to S. 2248 (SSCI version), new
provider:
provider in connection with an acquisition
section 702(h) of FISA.
The order must require the communications
authorized jointly by the AG and the DNI, new
service provider or custodian, or officer, employee,
section 703(h) of FISA: The AG and the DNI
or agent of such service provider or custodian, who
may direct in writing an electronic communication
has authorized access to the information, facilities,
service provider, as defined in new section 701 of
or technical assistance necessary to accomplish the
FISA, to
acquisition to provide such information, facilities,
immediately provide the government with all
or technical assistance necessary to accomplish the
information, facilities, or assistance necessary to
acquisition produce a minimum of interference
accomplish the acquisition in a manner that will
with the services that provider, custodian, officer,
protect the secrecy of the acquisition and produce a

---

CRS-16
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
employee, or agent is providing the target of the
minimum of interference with the services that
acquisition; and to maintain any records
such electronic communication service provider is
concerning the acquisition or the aid furnished
providing to the target; and to maintain under
under security procedures approved by the AG and
security procedures approved by the Attorney
the DNI.
General and the Director of National Intelligence
any records concerning the acquisition or the aid
furnished that such electronic communication
service provider wishes to maintain.
Requirements for the federal government: The
order must direct the federal government to:
— compensate, at the prevailing rate, a person for
Compensation — the federal government shall
Similar provision to S. 2248 (SSCI version), new
providing information, facilities, or assistance
compensate, at the prevailing rate, an electronic
section 702(h)(2) of FISA.
pursuant to such order;
communication service provider for providing
information, facilities, or assistance.
— provide that person with a copy of the portion
of the order directing the person to comply with
the order (cf., Sec. 19(a) of the bill, imposing a
similar requirement under section 102(a) of FISA,
50 U.S.C. § 1802(a) and section 105(c)(2) of FISA,
50 U.S.C. § 1805(c)(2); and Sec. 4 of the bill,
amending section 105C(b) of FISA imposing a
similar requirement in emergency authorization
context); and
— provide a certification stating that the
acquisition is authorized under section 105B of
FISA, as amended, and that all requirements of this
section have been met (cf., Sec.19(a) of the bill,
imposing a similar requirement under section
102(a) of FISA, 50 U.S.C. § 1802(a), and Sec. 4 of
the bill, amending section 105C(b) of FISA

---

CRS-17
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
imposing a similar requirement in emergency
authorization context).
Requirements for the applicant for the order:
The order must direct the applicant for the order to
follow the procedures, as proposed or as modified
by the judge, to be used by the AG and the DNI
during the duration of the order to determine that
there is a reasonable belief that the targets of the
acquisition are non-U.S. persons located outside
the U.S.; the minimization procedures; and the
guidelines to ensure that an application is filed
under section 104, if otherwise required by this
Act, when a significant purpose of an acquisition is
to acquire the communications of a specific U.S.
person reasonably believed to be located in the
U.S.
No similar provision.
Challenging of directives: Permits an
Similar to S. 2248 (SSCI version), new section
electronic communication service provider
702(h)(4) of FISA.
receiving such a directive to challenge it by filing a
petition to modify it or set it aside with the FISC.
Within 24 hours, the presiding judge of the FISC
would assign the petition to a judge of the FISC
petition review pool established under section
103(e)(1) of FISA, 50 U.S.C.§ 103(e)(1).
Standard of review: The judge considering the
Similar to S. 2248 (SSCI version), new section
petition to modify or set aside a directive may
702(h)(4)(C).
grant it only if the judge finds that the directive
does not meet the requirements of new section
703(h)(4)(C) of FISA or is otherwise unlawful.
Otherwise, the judge shall immediately affirm such
directive, and order the recipient to comply with it.

---

CRS-18
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
The judge shall provide a written statement for the
record of the reasons for his or her determination.
Any directive not explicitly modified or set aside
under this paragraph shall remain in full effect.
Enforcement of FISC order affirming,
Similar provision to S. 2248 (SSCI version), new
modifying, or setting aside a directive: The
section 702(h)(5)(D) of FISA.
FISC may punish a failure to obey an FISC order
issued under this paragraph as contempt of court.
Service of process: Any process under this
Similar provision to S. 2248 (SSCI), new section
paragraph may be served in any judicial district in
702(c)(4)(E) of FISA.
which the electronic communication service
provider may be found. New section 703(c)(4)(E)
of FISA.
Appeal to the FISCR of an FISC order
Similar provision to S. 2248 (SSCI version.) New
affirming, modifying, or setting aside a
section 702(c)(6).
directive, or punishing failure to obey such an
order: An appeal to the FISCR may be filed
within 7 days of the FISC order by the government
or an electronic communication service provider
receiving such a directive. The FISCR shall have
jurisdiction to consider such a petition and shall
provide a written statement for the record of the
reasons for a decision under this paragraph. New
section 703(c)(6) of FISA.
Certiorari to the U.S. Supreme Court: The
Similar provision to S. 2248 (SSCI version), new
government or an electronic communication
section 702(c)(6)(B) of FISA.
service provider receiving a such a directive may
petition the U.S. Supreme Court for review of an
such an FISCR decision The record for such
review shall be transmitted under seal to the

---

CRS-19
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
Supreme Court, which shall have jurisdiction to
review such decision. New section 703(c)(6)(i) of
FISA.
Enforcement of section 105B order: The AG
Enforcement of new section 703(h) directives:
Similar provision to S. 2248 (SSCI version), new
may seek the aid of the FISC to enforce
In a case of failure to comply with such a directive,
section 702(h)(5) of FISA.
compliance with an order under section 105B,
the AG may petition the FISC for an order to
as amended. Failure to obey such a court order
compel compliance. The presiding judge of the
may be punished by contempt of court. In
FISC shall assign the case to a judge of the petition
addition, service of process may be made in any
review pool of the FISC.
judicial district in which the person may be found.
Limitation on liability for those furnishing aid
Release from liability for electronic
Similar provision to S. 2248 (SSCI version), new
to the government pursuant to an order under
communication service providers who furnish
section 702(h)(3) of FISA.
section 105B of FISA, as amended. No cause of
aid to the government pursuant to such a
action shall lie in any court against any person for
directive: Notwithstanding any other law, no
providing any information, facilities, or assistance
cause of action shall lie in any court against any
in accordance with an order issued under such an
electronic communication service provider for
order.
providing any information, facilities, or assistance
in accordance with such a directive.

---

CRS-20
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
Retention of section 105B order: The DNI and
Maintenance of records under new section
Similar provision, new section 703(k) of FISA,
the FISC shall retain an order issued under section
703(k): A record of a proceeding under this
maintenance of records under new section 702(k).
105B of FISA, as amended, for 10 years.
section, including petitions filed, orders granted,
and statements of reasons for decision, shall be
maintained under security measures adopted by the
Chief Justice of the United States, in consultation
with the AG and the DNI.
All petitions under this section shall be filed under
seal. In any proceedings under this section, the
court shall, upon request of the government,
review ex parte and in camera any government
submission, or portions of a submission, which
may include classified information.
Directives
made or orders granted under new section 703
must be retained for at least 10 years.
FISC assessment of compliance with a section
No similar provision, but see, new sections
No similar provision, but see, new sections
105B order: At least quarterly during the
703(l)(3)(A) and 703(l)(3)(C) of FISA. New
702(l)(3)(A) and 702(l)(3)(C).
pendency of an order or an extension of a order,
section 703(l)(3)(A) requires the head of each
the FISC must assess compliance with its order
element of the intelligence community conducting
and review the circumstances under which
an acquisition under new section 703(a) to conduct
information concerning U.S. persons was acquired,
an annual review of the acquisition to determine
retained, and disseminated.
whether there is reason to believe that foreign
intelligence information has been or will be
obtained from the acquisition, and to provide that
review to the FISC. This review shall provide,
with respect to such acquisitions, the number of
disseminated intelligence reports containing a
reference to a U.S. person identity; the number of
U.S. person identities subsequently disseminated
by that element in response to requests for
identities that were not referred to by name or title
in the original reporting; and the number of targets
that were later determined to be located in the U.S.

---

CRS-21
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
and the number of persons located in the U.S.
whose communications were reviewed. Such
review is to be used by the head of each such
element of the intelligence community to evaluate
the adequacy of the minimization procedures
utilized by such element or the application of the
minimization procedures to a particular acquisition
authorized under new subsection 703(a) of FISA.
New section 703(l)(3)(C) requires the head of each
such element of the intelligence community to
provide a copy of its annual report to the FISC.
See also, new section 703(l)(1) of FISA, which
provides that at least semiannually, the IGs of DOJ
and any element of the intelligence community
authorized to acquire foreign intelligence
information under new section 703(a) must assess
compliance with targeting and minimization
procedures and submit each assessment to the
FISC, HPSCI and SSCI.
No similar provision.
Sec. 104 of the bill, amending section 104 of
Similar provision to S. 2248 (SSCI version), Sec.
FISA, 50 U.S.C. § 1804, regarding applications
104 of the bill, amending section 104 of FISA, 50
for FISC orders authorizing electronic
U.S.C. § 1804.
surveillance: This provision makes a series of
amendments to the requirements for applications
for FISC orders approving applications authorizing
electronic surveillance under FISA. Paragraphs
104(a)(2) and (11), and subsection (b) are deleted,
with the surrounding provisions redesignated to
reflect the absence of these provisions.
Redesignated section 104(a)(6) is amended to add
the Deputy Director of the FBI, if designated by
the President as a certifying official, to the list of

---

CRS-22
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
those permitted to make a certification required as
part of the application. Redesignated section
104(d) of FISA is amended to add the Director of
the CIA to the list of those who may request in
writing that the AG personally review an
application for electronic surveillance of a target
described under section 101(b)(2) of the FISA.

---

CRS-23
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
Sec. 4 of the bill, amending section 105C of
Sec. 105(6) of the bill, amending section
Sec. 101(a)(2) of the bill, new section
FISA: Emergency authorization of acquisitions
105(e)(1)-(6) of FISA, 50 U.S.C. § 1805(e)(1)-(6)
702(c)(2)(D) of FISA: Emergency procedures:
of communications of persons outside the U.S.
(formerly section 105(f) as redesignated by Sec.
Notwithstanding any other provision of this title,
who may be communicating with persons inside
105(5) of the bill): Emergency authorization of
the AG may authorize the emergency employment
the U.S.: Under section 105C of FISA, as
electronic surveillance: Notwithstanding any
of electronic surveillance for up to72 hours while
amended by the bill, the AG and the DNI may
other provision of this title, the AG may authorize
an FISC order authorizing the surveillance is
jointly authorize an emergency acquisition of
the emergency employment of electronic
sought, if statutory criteria are met:
foreign intelligence information as defined in
surveillance for up to 168 hours while an FISC
section 101(e)(1) and (2)(A) of FISA (see
order authorizing the surveillance is sought, if
glossary) for up to 45 days if the DNI and the AG
statutory criteria are met:
jointly determine that the statutory criteria have
been met:
— these include a requirement that the AG and
— these include a requirement that the AG
— the AG must reasonably determine that an
DNI jointly determine that an emergency situation
determine that an emergency situation exists with
emergency situation exists with respect to the
exists with respect to an authorization for an
respect to the employment of electronic
employment of electronic surveillance to obtain
acquisition under section 105B before an order
surveillance to obtain foreign intelligence
foreign intelligence information before an order
approving the acquisition under such section can
information before an order authorizing such
authorizing such surveillance can with due
with due diligence be obtained; and requirements
surveillance can with due diligence be obtained;
diligence be obtained
similar to those required for an application for a
section 105B authorization, and
— the AG must also determine that the factual
— the AG must also reasonably determine that the
basis for issuance of an order under title I of FISA
factual basis for issuance of an order under new
to approve such electronic surveillance exists;
section 702(c)(2)(B) to approve such an
acquisition exists
— the AG must make a section 104 application to
— as soon as practicable within 72 hours after the
an FISC judge as soon as practicable, but not later
AG authorizes an emergency acquisition, the AG
than 168 hours after the Attorney General
must submit a request in accordance with new
authorizes such surveillance;
section 702(c)(2)(B) of FISA to the FISC judge

who was notified at the time the decision to
employ emergency acquisition was made

---

CRS-24
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
— the DNI and the AG, or their designees must
— the AG must inform, either personally or
— the AG must inform an FISC judge at the time
inform an FISC judge having jurisdiction to
through a designee, a judge having jurisdiction
of such authorization that the decision has been
approve an acquisition under section 105B at the
under section 103 at the time of such authorization
made to employ an emergency acquisition
time of the authorization under this section that the
that the decision has been made to employ
decision has been made to acquire foreign
emergency electronic surveillance; and
intelligence information.
— if the AG authorizes such emergency
— the AG must require that minimization
employment of electronic surveillance under
procedures meeting the definition of minimization
paragraph, he shall require that the minimization
procedures under section 101(h) be followed.
procedures required by this title for the issuance of
a judicial order be followed.
Effect of absence of judicial order approving
Effect of absence of judicial determination
such electronic surveillance: In the absence of a
finding probable cause: In the absence of a
judicial order approving such electronic
judicial determination finding probable cause to
surveillance, the surveillance shall terminate when
believe that the U.S. person that is the subject of an
the information sought is obtained, when the
emergency employment of an acquisition is a
application for the order is denied, or after the
foreign power or an agent of a foreign power, the
expiration of 168 hours from the time of
emergency employment of such an acquisition
authorization by the Attorney General, whichever
shall terminate when the information sought is
is earliest.
obtained, when the request for a determination is
denied, or after the expiration of 72 hours from the
time of authorization by the Attorney General,
whichever is earliest.
Limitations on use of information from
Limitations on use of information from
surveillance if application denied or
surveillance if the Court determines that there
surveillance terminated without issuance of a
is not probable cause to believe that a U.S.
court order approving it: If such an application
person is a foreign power or an agent of a
is denied or the electronic surveillance is
foreign power: If the Court determines that there
terminated and no order is issued approving the
is not probable cause to believe that a U.S. person
surveillance, no information obtained or evidence
is a foreign power or an agent of a foreign power
derived from such surveillance shall be received in
in response to a request for a determination under

---

CRS-25
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
evidence or otherwise disclosed in any trial,
clause 702(c)(2)(D)(i)(III), or in any other case
hearing, or other proceeding in or before any
where the emergency employment of an
authority of the United States, a State, or political
acquisition under this subparagraph is terminated
subdivision thereof, and no information concerning
and no determination finding probable cause is
any U.S. person acquired from such surveillance
issued, no information obtained or evidence
shall subsequently be used or disclosed in any
derived from such acquisition shall be received in
other manner by federal officers or employees
evidence or otherwise disclosed in any trial,
without the consent of such person, except with the
hearing, or other proceeding in or before any other
approval of the AG if the information indicates a
authority of the U.S., a state, or political
threat of death or serious bodily harm to any
subdivision thereof, and no information concerning
person. The AG shall assess compliance with
any U.S. person acquired from such acquisition
these requirements.
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 AG if the information indicates a
threat of death or serious bodily harm to any
person.
Judicial review of a denial of an application to
Similar provision to S. 2248 (SSCI version).
approve an emergency authorized electronic
surveillance: A denial may be reviewed by the
FISCR, and by the U.S. Supreme Court on a
certiorari petition.
See also, Sec. 104 of the bill, amending section
Similar provisions.
104 of FISA provisions for application for FISC
orders approving electronic surveillance; and Sec.
107 of the bill, making similar changes to the
physical search application and order provisions of
FISA, section 303 and 304 of FISA, 50 U.S.C. §§

---

CRS-26
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
1823 and 1824 of FISA; cf. Sec. 108 of the bill,
amending section 403 of FISA, 50 U.S.C. § 1843,
regarding the installation and use of pen registers
or trap and trace devices.
No similar provision.
Sec. 105 of the bill, amending section 105 of
Sec. 105(7) of FISA, adding new subsection
FISA to add a new subsection (i), 50 U.S.C.
105(i), 50 U.S.C. § 1805(i): Similar provision to
1805(i) (former section 105(i) of FISA was
section 105(i) in S. 2248 (SSCI version).
redesignated section 105(h) by Sec. 105(5) of the
bill): Adding pen registers and trap and trace
devices, at applicant’s request, to orders
approving electronic surveillance: When an
order approving electronic surveillance under
FISA is approved, the FISC judge, upon request of
the applicant, shall also authorize installation and
use of pen registers and trap and trace devices and
direct disclosure of information set forth in section
402(d)(2) of FISA, including the identity, if
known, of the target of the investigation; the
identity, if known, of the person to whom the
phone line or other facility to which the pen
register or trap and trace device is to be attached or
applied is leased or in whose name it is listed; the
attributes of the communications to which the
order applies.
No similar provision.
Sec. 106 of the bill, amending section 106(i) of
Sec. 106 of the bill, amending section 106(i) of
FISA, 50 U.S.C. § 1806(i), expands from “radio
FISA, 50 U.S.C. § 1806(i): similar provision to S.
communications” to “communications” the
2248 (SSCI version).
application of this provision dealing with
destruction upon recognition of the unintentionally
acquired contents of communications acquired by
a surveillance device, unless the AG determines
that the contents indicate a threat of death or
serious bodily harm to any person.
Under new section 704 of FISA, information
Similar provision, new section 703 of FISA.

---

CRS-27
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
acquired from an acquisition conducted under new
section 703 of FISA shall be deemed to be
information acquired from an electronic
surveillance under title I of FISA for purposes of
section 106 of FISA, except for the purposes of
section 106(j) of FISA. Section 106 of FISA deals
with use of information obtained or derived from
electronic surveillance under FISA. Section 106(j)
deals with notification of emergency employment
of electronic surveillance, contents, postponement.

---

CRS-28
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
No similar provision.
Sec. 107 of the bill, amending section 303 of
Sec. 107 of the bill, amending section 303 of
FISA, 50 U.S.C. § 1823, regarding applications
FISA, 50 U.S.C. § 1823, regarding applications
for FISC orders authorizing physical searches
for FISC orders authorizing physical searches
to gather foreign intelligence information under
to gather foreign intelligence information under
FISA, and section 304 of FISA, 50 U.S.C. §
FISA, and section 304 of FISA, 50 U.S.C. §
1824, dealing with FISC orders approving
1824, dealing with FISC orders approving
physical searches: This provision makes a series
physical searches: Similar provision to Sec. 107
of amendments to the requirements for
in S. 2248 (SSCI version).
applications for FISC orders approving
applications authorizing physical searches under
FISA and for FISC orders approving such physical
searches. Paragraphs 303(a)(2), and section
304(a)(1) are deleted, with the surrounding
provisions redesignated to reflect the absence of
these provisions. Redesignated section 303(a)(6) is
amended to add the Deputy Director of the FBI, if
designated by the President as a certifying official,
to the list of those permitted to make a certification
required as part of the application. Redesignated
section 303(d)(1)(A) of FISA is amended to add
the Director of the CIA to the list of those who
may request in writing that the AG personally
review an application for physical search of a
target described under section 101(b)(2) of the
FISA.
Sec. 107(b)(2) amends section 304(e) of FISA,
dealing with emergency employment of a physical
search pursuant to AG authorization while an FISC
order is sought approving the search, similarly to
the way section 105 of the bill amends section
105(e) of FISA. It extends from 72 hours to 168
hours the period within which an application for an
FISC order must be filed after the AG’s
authorization of emergency employment of a

---

CRS-29
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
physical search. It also provides that, in the
absence of a court order approving the search, such
search shall terminate at the earlier of the date on
which the information sought was obtained, the
date when the application for a court order was
denied, or the expiration of 168 hours from the
time of the AG authorization.
No similar provision.
Sec. 108 of the bill amends section 403 of FISA,
Sec. 108 of the bill, amendments to section 403
50 U.S.C. § 1843, dealing with emergency
of FISA regarding emergency installation and
installation and use of pen registers or trap and
use of pen registers or trap and trace devices
trace devices under FISA. Sec. 108 of the bill
under FISA: similar to Sec. 108 of the S. 2248
amends section 403 of FISA, 50 U.S.C. § 1843, to
(SSCI version).
extend from 48 to 168 hours the period after an
emergency authorization by the AG of installation
and use of a pen register or trap and trace device is
permitted while an application is filed pursuant to
section 402 of FISA, 50 U.S.C. § 1842, seeking
court authorization of the pen register or trap and
trace device. In the absence of an order approving
the installation and use of the pen register or trap
and trace device, that installation and use must
terminate at the earlier of when the information
sought is obtained; when the application for the
order is denied; or 168 (formerly 48) hours after
the time of the emergency authorization by the
AG.

---

CRS-30
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
AG directives to those furnishing aid under
No similar provision in the bill, but see, section
emergency authorization under section 105C of
105(c)(2)(B)-(D) of FISA regarding directions to
FISA: The AG may direct a communications
specified communication or other common carrier,
service provider or custodian, or an officer
landlord, custodian, or other specified person to
employee or agent thereof, who has lawful
furnish aid to the government in connection with
authority to access the information, facilities, or
electronic surveillance under an FISC orders
technical assistance needed to accomplish the
approving electronic surveillance. See also,
acquisition to: furnish the AG forthwith with such
section 105(h) of FISA, 50 U.S.C. § 1805(h)
aid in a manner that will protect the secrecy of the
(formerly section 105(i) of FISA, redesignated by
acquisition and produce a minimum of interference
Sec. 105(5) of the bill) barring causes of action in
with the services they provide to the target of the
any court against any provider of a wire or
acquisition; and to maintain any records
electronic communication service, landlord,
concerning the acquisition or aid furnished under
custodian, or other person that furnishes aid to the
security procedures approved by the AG and DNI.
government in accordance with a court order or
request for emergency assistance under FISA for
electronic surveillance or physical search.

---

CRS-31
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
Documentation and 2 certifications to be
No similar provision, but see the requirements for
No similar provision, but see the
provided by the AG to those furnishing aid
the AG to authorize emergency employment of
requirements for the AG to authorize emergency
under emergency authorization: The AG shall
electronic surveillance in section 105(e)(1)-(5) of
employment of acquisitions in section 105(e)(1)-
provide to any person providing assistance under
FISA, 50 U.S.C. § 1805(e)(1)-(5) (formerly section
(5) of FISA (formerly section 105(f) of FISA,
such a directive with:
105(f) of FISA, redesignated by Sec. 105(5) of the
redesignated by Sec. 105(5) of the bill).
— a document setting forth the parameters of the
bill).
directive;
— a certification stating that an emergency
authorization has been issued under section 105C
of FISA as amended by the bill, all requirements of
section 105C have been met, an FISC judge has
been informed by the AG and the DNI or their
designees of the emergency authorization in
accordance with section 105C(b)(2), and an
application for authorization of the acquisition will
be submitted to the FISC under section 105C(a) of
FISA; and
— a certification that the recipient shall be
compensated at the prevailing rate for aid
furnished pursuant to such directive.
Sec. 5 of the bill, new section 105D of FISA:
New section 703(l) of FISA deals with oversight,
Similar provision, new section 703(l) of FISA,
Congressional oversight of acquisitions of non-
including congressional oversight, of procedures
dealing with oversight, including congressional
U.S. persons located outside the U.S. who may
for acquisition of communications of persons
oversight, of procedures for acquisition of
be communicating with persons inside the U.S.:
reasonably believed to be located outside the
communications of persons reasonably believed
U.S. to acquire foreign intelligence information,
to be located outside the U.S. to acquire foreign
(a) Applications, procedures, orders: Within 7
while Sec. 103 of the bill addresses submittal to
intelligence information, while Sec. 103 of the
days after submission of a section 105B(a)
Congress of certain FISC orders: At least
bill addresses submittal to Congress of certain
application or issuance of an FISC order under
semiannually under new section 703(l)(4) of FISA,
FISC orders.
section 105B(e) approving such application, the
the AG is required to fully inform, in a manner
DNI and the AG must submit to the House
consistent with national security, the congressional
Permanent Select Committee on Intelligence
intelligence committees, and the House and Senate
(HPSCI), the Senate Select Committee on
Judiciary Committees, concerning implementation
Intelligence (SSCI), and the House and Senate
of S. 2248. Each report is to include any
Judiciary Committees:
certifications made under new section 703(g) of

---

CRS-32
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
— in the case of an application, a copy of the
FISA during the reporting period; any directives
application, including certification made under
made under new section 703(h) of FISA during the
section 105B(e)(1), and a description of the
reporting period; judicial review of such
primary purpose of the acquisition for which the
certifications and targeting and minimization
application was submitted; and
procedures utilized with respect to such
— in the case of an order, a copy of the order,
acquisition, including a copy of any order or
including the procedures and guidelines referred to
pleading in connection with such review that
in section 105B(e)(1)(E) (procedures to be used by
contains significant legal interpretation of the
the AG and DNI to determine that there is
provisions of FISA; any actions taken to challenge
reasonable belief that the targets of the acquisition
or enforce a directive under paragraphs (4) or (5)
are outside the U.S. and not U.S. persons;
of subsection (h); any compliance reviews
minimization procedures; and guidelines to be
conducted by the Department of Justice or the
used to ensure that a section 104 application will
Office of the Director of National Intelligence of
be filed, if otherwise required by FISA, when a
acquisitions authorized under subsection (a); a
significant purpose of an acquisition is to acquire
description of any incidents of noncompliance with
the communications of a specific U.S. person
a directive issued by the Attorney General and the
reasonably believed to be located outside the U.S.).
Director of National Intelligence under subsection
(h), including incidents of noncompliance by an
element of the intelligence community with
targeting or minimization procedures; and
incidents of noncompliance by a specified person
to whom the AG and DNI issued a directive under
subsection (h); any procedures implementing this
section; and any annual review conducted pursuant
to paragraph 703(l)(3).
Sec. 103 of the bill, amending section 601(a)(5) of
Similar provision, Sec. 103 of the bill, amending
FISA, 50 U.S.C. § 1871(a)(5), requires the
section 601(a)(5) of FISA, 50 U.S.C. § 1871(a)(5).
semiannual reports of the AG submitted to HPSCI,
SSCI, and the House and Senate Judiciary
Committees under this section to include, in part,
all FISC or FISCR orders, as well as decisions or
opinions of such courts, that include significant
construction or interpretation of the provisions of
FISA.

---

CRS-33
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
(b) Regular audits by the Inspector General
Assessments under new section 703(l)(2) of
Similar provision to S. 2248 (SSCI version), new
(IG) of U.S. Department of Justice (DOJ):
FISA by the IGs of DOJ and of any element of
section 702(l)(2) of FISA.
Within 120 days of enactment of new section
the intelligence community authorized to
105D, the IG of DOJ must complete an audit on
acquire foreign intelligence information under
implementation and compliance with the
new section 703(a) of FISA: These IGs are to
procedures and guidelines referred to in section
review compliance of their agency or element with
105B(e)(1)(E) and submit to the HPSCI, SSCI, and
targeting and minimization procedures; with
House and Senate Judiciary Committees, the AG,
respect to new section 703(a) acquisitions, the
the DNI, and the FISC, the audit results,
number of U.S. person identities disseminated in
including, for each order authorizing acquisition of
intelligence reports or in response to subsequent
foreign intelligence information under section
requests for identities that were not referred to by
105B:
name or title in the original reporting; and, with
— the number of targets of an acquisition later
respect to such acquisitions, the number of targets
determined to be located in the U.S.;
later determined to be located in the U.S. and the
— the number of persons located in the U.S.
number of persons located in the U.S. whose
whose communications have been acquired under
communications were reviewed. These
such order;
assessments are to be disseminated to the AG, the
— the number of reports disseminated containing
DNI, and the congressional intelligence
information on a U.S. person that was collected
committees.
under such order;
— the number of applications submitted for
New section 703(l)(3) of FISA requires similar
Similar provision to S. 2248 (SSCI version), new
approval of electronic surveillance under section
information to be included in annual reviews
section 702(l)(3) of FISA.
104 for targets whose communications were
conducted by the head of an element of the
acquired under the order.
intelligence community conducting an acquisition
authorized under new section 703(a) of FISA.
The report to these congressional committees and
These are used by the elements to evaluate
to the FISC must be submitted by the AG within
adequacy of minimization procedures used by the
30 days after completion of the audit.
element or application of such procedures to a
particular authorized acquisition. These annual
reviews are to be provided to the FISC, but are also
included in the AG’s semiannual reports to the
congressional intelligence committees and the
House and Senate Judiciary Committees under
new section 703(l)(4), discussed above.

---

CRS-34
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
(c) Compliance reports: Within 60 days of
Incidents of non-compliance in connection with
Similar provision to S. 2248 (SSCI version), new
enactment of new section 105D, and every 120
acquisitions under new section 703 of FISA by
section 702(l)(4) of FISA.
days thereafter, the DNI and the AG must submit
elements of the intelligence community or by those
to the HPSCI, SSCI, and House and Senate
receiving directives to furnish aid to the
Judiciary Committees and the FISC a report
government with respect to such acquisitions are
concerning incidents of non-compliance by an
included in the AG’s semiannual reports to the
element of the intelligence community or by a
HPSCI, the SSCI, and the House and Senate
person furnishing aid to the government with an
Judiciary Committees under new section 703(l)(4)
order issued under section 105B(e) approving an
of FISA.
application authorizing acquisition of the contents
of communications of non-U.S. persons outside the
U.S. who may be communicating with persons
inside the U.S. Report covers non-compliance by
an element of the intelligence community with
procedures or guidelines referred to in section
105B(e)(1)(E), or non-compliance with a directive
by a person furnishing aid to the government under
such an order.
(d) Annual report on emergency authority: The
No similar provision.
No similar provision.
DNI and the AG must submit annual reports to the
HPSCI, SSCI, and House and Senate Judiciary
Committees containing the number of section
105C emergency authorizations and descriptions of
any incidents of non-compliance with such
emergency authorizations.

---

CRS-35
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
Sec. 6 of the bill, new section 105E of FISA:
No similar provision, but the frequency of
Similar provisions to those referred to in S. 2248
Dissemination of communications of non-U.S.
dissemination of U.S. person identity information
(SSCI version).
persons located outside the U.S. who may be
is tracked in the agency assessments required
communicating with persons in the U.S.:
under new section 703(l)(2); in the annual review
Disclosure or dissemination of the contents of
by the heads of elements of the intelligence
communications collected under an acquisition
community conducting an acquisition authorized
under section 105B of FISA or an emergency
under section 703(l)(3); and, by virtue of the
authorization under section 105C of FISA, and
inclusion of such annual reviews in the semiannual
intelligence reports based on such contents, with
reports to congress under new section 703(l)(4).
information that identifies any U.S. person, is
Cf., minimization procedures adopted by the AG,
prohibited unless a federal officer or employee
in consultation with the DNI, under new section
whose basic pay rate is not less than the minimum
703(f) of FISA, which must be consistent with the
rate payable under 5 U.S.C. § 5382 (relating to
requirements of section 101(h) of FISA (see
rates of pay for the Senior Executive Service)
glossary).
determines that the identity of the U.S. person is
necessary to understand the foreign intelligence
collected under section 105B or section 105C or
assess the importance of such information; and to
protect U.S. national security, U.S. citizens,
employees or officers; or members of the U.S.
Armed Forces.

---

CRS-36
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
Sec. 7 of the bill, new subsection 103(g) of FISA: Sec. 109 of the bill, amending section 103(a) of
Sec. 109(b) of the bill, amending section 103(a)
FISC en banc: In any case where the FISC or an
FISA: FISC en banc: As amended, section
of FISA: FISC en banc: Similar provision to that
FISC judge is required to review a matter under
103(a) of FISA provides that the FISC may, on its
in S. 2248 (SSCI version).
FISA, the FISC may, at the discretion of the court,
own initiative, or upon the request of the
sit en banc to review the matter and issue any
government in any proceeding or a party under
orders related thereto.
section 501(f) or section 703(h)(4) or (5), hold a
hearing or rehearing en banc, when ordered by a
majority of the FISC judges upon a determination
that en banc consideration is necessary to secure or
maintain uniformity of the court’s decisions; or the
proceeding involves a question of exceptional
importance. The court en banc may exercise any
authority granted by FISA to an FISC judge.
Sec. 109(b)(2) of the bill makes conforming
amendments to section 103(a) of FISA, 50 U.S.C.
§ 1803(a), and section 302(c) of FISA, 50 U.S.C. §
1833(c).
Sec. 8 of the bill, other FISC matters:
Sec. 109(a) and (c) and Sec. 110 of the bill, other
Sec. 109(a) of the bill, FISC: Sec. 109(a) of the
This section increases the size of the FISC from 11
FISC matters: Sec. 109(a) of the bill amends
bill amends section103(a) of FISA, 50 U.S.C. §
judges to 15, and permits such judges to be drawn
section 103(a) of FISA, 50 U.S.C. § 1803(a) to
1803(a) to permit FISC judges to be drawn from
from “at least” seven of the U.S. judicial circuits.
permit FISC judges to be drawn from “at least”
“at least” seven of the U.S. judicial circuits.
It also makes certain non-substantive changes to
seven of the U.S. judicial circuits.
section 103(a) of FISA, 50 U.S.C.§ 1803(a).
It also adds a new sentence to that subsection
No similar provision.
requiring an FISC judge, within 24 hours of receipt
of an application by the FISC, to make a
determination to approve, deny, or modify an
application submitted under sections 105(f), 304(e)
or 403, 50 U.S.C. §§ 1805(f), 1824(e), and 1843,
with respect to an electronic surveillance, physical
search, or installation and use of a pen register or
trap and trace device commenced under an
emergency authorization.

---

CRS-37
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
No similar provision.
Sec. 109(c) of the bill amends section 103 of FISA
Similar provision to S. 2248 (SSCI version), Sec.
to redesignate subsection (f) as subsection (g) and
109(c) of the bill, amending section 103(f)(1) and
to insert a new subsection (f) permitting a judge of
(2) of FISA.
the FISC, the FISCR or a judge of that court, or the
U.S. Supreme Court or a justice of that court, to, in
accordance with the rules of their respective
courts, enter a stay of an order or an order
modifying an order of the FISC or the FISCR
entered under any title of FISA, while the FISC
conducts a rehearing, while an appeal is pending
before the FISCR, or while a petition of certiorari
is pending in the U.S. Supreme Court, or during
the pendency of any review by that court. This
authority is to apply to an order entered under any
FISA provision.
Sec. 110 of the bill makes technical and
Similar provision to S. 2248 (SSCI version), Sec.
conforming amendments to section 103(e) of
111 of the bill.
FISA. As amended, the section would address the
jurisdiction of the FISC petition review pool over
petitions filed pursuant to “sections 501(f)(1) or
703” of FISA, and publication of rules of
procedure to govern its review of such petitions.
This replaces language reflecting the enactment of
P.L. 110-55 on August 5, 2007, which referred to
petitions filed under “sections 105B(h) and
501(f)(1)” of FISA. Section 105B is among the
sections to be repealed by Sec. 302(b) of S. 2248.
Sec. 9 of the bill, reiteration of FISA as
Sec. 102 of the bill, adding new section 112 to
Sec. 102 of the bill, adding new section 112 to
exclusive means by which electronic
FISA: Statement of exclusive means by which
FISA: Statement of exclusive means by which
surveillance may be conducted for gathering
electronic surveillance and interception of
electronic surveillance and interception of
foreign intelligence information, with one
domestic communications may be conducted:
certain communications may be conducted:
exception: Provides that, notwithstanding any
New section 112(a) of FISA provides that FISA

---

CRS-38
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
other provision of law, FISA shall be the exclusive
shall be the exclusive means for targeting U.S.
means by which electronic surveillance may be
persons for the purpose of acquiring their
conducted for the purpose of gathering foreign
communications or communications information
intelligence information, until specific statutory
for foreign intelligence purposes, whether such
authorization for electronic surveillance, other than
persons are inside the United States or outside the
an amendment to FISA, is enacted. Such specific
United States, except in cases where specific
authorization shall be the only exception.
statutory authorization exists to obtain
communications information without an order
under FISA.
New section 112 of FISA provides that “Chapters
New section 112(b) of FISA, provides that
119 and 121 of title 18, United States Code, and
chapters 119 and 121 of title 18, United States
[FISA] shall be the exclusive means by which
Code, and FISA shall be the exclusive means by
electronic surveillance (as defined in section
which electronic surveillance and the interception
101(f), regardless of the limitation of section 701)
of domestic wire, oral, or electronic
and the interception of domestic wire, oral, or
communications may be conducted.
electronic communications may be conducted.”
Under new subsection 112(c) of FISA, subsections
112(a) and (b) shall apply unless specific statutory
authorization for electronic surveillance, other than
as an amendment to FISA, is enacted. Such
specific statutory authorization shall be the only
exception to subsections 112 (a) and (b) of FISA.
(b) Conforming Amendments-
18 U.S.C. § 2511(2)(a) is amended by adding at
the end a requirement that a certification under 18
U.S.C. § 2511(2)(a)(ii)(B) for assistance to obtain
foreign intelligence information shall identify the
specific provision of the FISA that provides an
exception from providing a court order, and shall
certify that the statutory requirements of such

---

CRS-39
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
provision have been met.
Conforming amendments are made to the FISA
table of contents.
Section 10 of the bill, enhancement of wartime
No similar provision.
No similar provision.
authority: FISA currently provides for the use of
electronic surveillance, physical search, and
installation and use of pen registers and trap and
trace devices without a court order under FISA to
gather foreign intelligence information for 15
calendar days after a declaration of war by
Congress under sections 111, 309 and 404 of
FISA, 50 U.S.C. § 1811, 1829, and 1844. Section
10 would amend each of these sections to permit
the use of each of these investigative techniques
without a court order under FISA to collect foreign
intelligence information for 15 calendar days after
a declaration of war by Congress “or an
authorization for the use of military force
described in section 2(c)(2) of the War Powers
Resolution, 50 U.S.C. § 1541(c)(2), if such
authorization contains a specific authorization for
foreign intelligence collection under this section,
or if the Congress is unable to convene because of
an attack upon the United States.”
Sec. 11 of the bill, audit of warrantless
No similar provision.
Sec. 110 of the amendment in the nature of a
surveillance programs conducted on or after
substitute to S. 2248 is similar to Sec. 11 of H.R.
September 11, 2001, including the Terrorist
3773.
Surveillance Program: Within 180 days of
enactment of the RESTORE Act, the IG of DOJ
must complete an audit of all federal programs
involving acquisition of communications
conducted without a court order on or after

---

CRS-40
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
September 11, 2001, including the Terrorist
Surveillance Program. This audit is to include
acquiring all relevant documents, including
memoranda concerning a program’s legal
authority, authorizations of a program,
certifications to telecommunications carriers, and
court orders.
Report to Congress: Within 30 days of
completion of the audit, the IG of DOJ is directed
to submit to HPSCI, SSCI, and the House and
Senate Judiciary Committees a report containing
the results of the audit, including all documents
acquired pursuant to the audit. The report is to be
submitted in an unclassifed form, but may have a
classified annex.
Expedited security clearances: The DNI is to
ensure that the process for investigation and
adjudication of an application by the IG of DOJ or
the appropriate staff of the Office of the IG of DOJ
for a security clearance needed for conduct of this
audit is conducted as expeditiously as possible.

---

CRS-41
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
Sec. 12 of the bill, record-keeping system on
No similar provision.
No similar provision.
acquisition of communications of U.S. persons:
Requires the DNI and AG to jointly develop and
maintain a record-keeping system to keep track of
instances where the identity of a U.S. person
whose communications were acquired was
disclosed by an element of the intelligence
community that collected the communications to
other federal departments or agencies; and the
federal department or agency to whom the identity
was disclosed.
Annual report to Congress: Requires the DNI
and AG to submit an annual report on this record-
keeping system to the HPSCI, SSCI, and the House
and Senate Judiciary Committees. These reports
are to include the number of instances where such
disclosures were made.
Sec. 13 of the bill, authorization for increased
No similar provision.
No similar provision.
resources relating to foreign intelligence
surveillance:
Authorization of appropriations: Authorizes
appropriations for activities of the Office of the IG
and appropriate elements of the National Security
Division (NSD), and to the National Security
Agency (NSA) such sums as may be necessary to
meet personnel and information technology
demands to ensure timely and efficient processing
of applications and other submissions to the FISC,
audit and reporting requirements under new
section 105D of FISA, Sec. 10 of the bill (dealing
with warrantless electronic surveillance, physical

---

CRS-42
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
searches, or pen registers and trap and trace
devices in times of war, or when an attack on the
U.S. has prevented the Congress from convening),
and the record-keeping system and reporting
requirements under section 11 of the bill.
Authorization of additional personnel for NSD,
DNI, and FISC:
Authorizes additional personnel for the NSD of
DOJ for preparation, modification and renewal of
applications under FISA for orders under FISA for
foreign intelligence purposes. Such personnel are
to be assigned by the AG to appropriate office of
the intelligence community to directly assist
personnel in preparing such applications and in
prompt and effective oversight of the activities of
such agencies under FISC orders.
Authorizes additional legal and other personnel as
needed to carry out prompt and timely preparation
of applications for orders under FISA approving
electronic surveillance for foreign intelligence
purposes. Such additional personnel are to be
assigned to and among the intelligence
community, including FBI field offices, so that
they may directly assist personnel in preparation of
such applications.
Authorizes additional staff personnel for the FISC
as may be needed to facilitate prompt and timely
consideration by the FISC of applications for
orders approving electronic surveillance under
FISA for intelligence purposes.

---

CRS-43
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
Sec. 14 of the bill, document management
No similar provision.
No similar provision.
system for applications for orders approving
electronic surveillance: Requires the AG, in
consultation with the DNI and the FISC, to
develop and implement a secure classified
document management system permitting prompt
preparation, modification, and review of FISA
applications by appropriate personnel of DOJ, FBI,
NSA, and other elements of the federal
government before their submission to the FISC.
The system is to permit and facilitate prompt
submittal of applications to the FISC and prompt
transmittal of FISC rulings to personnel submitting
such applications, and to provide for secure
electronic storage and retrieval of all applications
and related matters with the FISC and for their
secure transmission to the National Archives and
Records Administration (NARA).
Sec. 15 of the bill, training of intelligence
No similar provision.
No similar provision.
community personnel in foreign intelligence
collection matters: The DNI, in consultation with
the AG, is directed to develop regulations to
establish procedures for conducting and seeking
approval of electronic surveillance, physical
searches, and installation and use of pen registers
and trap and trace devices on an emergency basis,
and for preparation and properly submitting and
receiving applications and orders under FISA. The
DNI, in consultation with the AG, is also directed
to prescribe related training on FISA and related
legal matters for applicable agencies of the
intelligence community.

---

CRS-44
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
Sec. 16 of the bill, information for Congress on
No similar provision.
No similar provision.
the Terrorist Surveillance Program and similar
programs: Within 7 days of enactment of the bill,
the President is directed to fully inform each
member of the HPSCI and SSCI on the Terrorist
Surveillance Program and any program in
existence from September 11, 2001 until the bill’s
effective date, that involves, in whole or in part,
electronic surveillance of U.S. persons in the U.S.
for foreign intelligence or other purposes, which is
conducted by any federal department, agency, or
element or any entity at the direction of a federal
department, agency or element, without fully
complying with the procedures of FISA or chapter
119, 121, or 206 of title 18, U.S.C.

---

CRS-45
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
Sec. 17 of the bill, technical and conforming
amendments: This section:
— amends the table of contents of FISA to reflect
Similar provisions in that Secs. 101(b), 102(b),
Similar provisions in that Secs. 101(b) and
the changes made by the bill.
205, and 302 of the bill amend the table of contents
102(b)(2) of the bill amend the table of contents of
of FISA to reflect changes made by the bill.
FISA to reflect changes made by the bill.
— strikes “105B(h) or” from the first and second
Similar provision, Sec. 110 of the bill.
Similar provision, Sec. 111 of the bill.
paragraphs of section 103(e) of FISA, 50 U.S.C. §
1803(e). As amended by the bill, there is no
subsection (h) in section 105B of FISA. As
amended by the Protect America Act, P.L. 110-55,
section 105B(h) of FISA provides authority for a
person receiving a directive to furnish aid to the
government in connection with an acquisition
under section 105B to challenge the legality of the
directive by filing a petition before the FISC
petition review pool established under section
103(e) of FISA, 50 U.S.C. § 1803(e).
— repeals Secs. 4 and 6 of the Protect America
No similar provision.
No similar provision.
Act, P.L. 110-55, dealing with reports to Congress,
and effective date and transitional procedures,
respectively.
Sec. 18 of the bill, December 31, 2009, sunset;
Sec. 101(c) of the bill, December 31, 2013, sunset
Sec. 101(c) of the bill, December 31, 2011, sunset
transition procedures: Except with respect to
of Secs. 101(a)(2) and (b) of the bill; Sec. 302
of Secs. 101(a)(2) and (b) of the bill: Under Sec.
acquisitions authorized before the sunset, sections
effective date; transition procedures: Under
101(c) of the bill, the amendments made by Sec.
105A, 105B, 105C, and 105D of FISA would be
Sec. 101(c) of the bill, Secs. 101(a)(2) and (b) of
101(a)(2) and (b) shall cease to have effect on
repealed on December 31, 2009. Those
the bill would sunset on December 31, 2013,
December 31, 2011, except that section 702(h)(3)
acquisitions authorized under section 105B of
except that section 703(h)(3) of FISA would
of FISA would remain in effect with respect to any
FISA before the sunset would continue in effect
remain in effect with respect to any directive
directive issued pursuant to section 702(h) of FISA
until the date of expiration of the authorization or
issued pursuant to section 703(h) of FISA during
during the period such directive was in effect. The
order.
the period such directive was in effect. The use of
use of information acquired by an acquisition
information acquired by an acquisition conducted
conducted under section 702 of FISA shall

---

CRS-46
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
under section 703 of FISA shall continue to be
continue to be governed by the provisions of
governed by the provisions of section 704 of FISA.
section 703 of that Act.
Under Sec. 302 of the bill, sections 105A, 105B,
and 105C of FISA would be repealed.
Acquisitions authorized under section 105B of
Somewhat similar, but not identical, provision for
No similar provision.
FISA before enactment of H.R. 3773 would remain
transitional procedures under Sec. 302 applicable
in effect until the expiration of the authorization or
to orders, authorizations, and directives under the
until 180 days after enactment, whichever is
Protect America Act, P.L. 110-55, and under S.
earlier. Within 30 days after expiration of all
2248. Also addresses continuing effect of
section 105B authorizations of acquisitions of
limitation of liability under section 105B of FISA.
foreign intelligence information made before the
Permits the FISC, at the request of the applicant, to
date of enactment of H.R. 3773, the DNI and AG
extinguish extant authorizations to conduct
are directed to submit to the HPSCI, SSCI, and the
electronic surveillance under FISA. Authorizes
House and Senate Judiciary Committees a report
filing of applications for new orders under FISA as
on such authorizations, including the number of
it existed prior to enactment of P.L. 110-55, as
persons in the U.S. whose communications have
amended by Secs. 102-109 of S. 2248, and directs
been acquired under that section; the number of
the FISC to enter orders approving such
reports disseminated containing information on a
applications if the statutory requirements in place
U.S. person collected under that section; the
before enactment of P.L. 110-55 are met, except as
number of section 104 applications submitted
amended by Secs. 102-109 of S. 2248.
based upon information collected pursuant to an
acquisition authorized under section 105B of FISA
S. 2248 does not have a parallel reporting
in effect the day before enactment of H.R. 3773;
requirement.
descriptions of any incidents of non-compliance
with an acquisition under that section by an
element of the intelligence community or a person
receiving a directive.

---

CRS-47
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
Sec. 19 of the bill, certification to
No similar provision.
No similar provision.
communications service providers that
acquisitions are authorized under FISA:
— Section 102(a) of FISA: This section requires
that the AG provide a carrier furnishing aid to the
government in connection with an electronic
surveillance under section 102 of FISA, 50 U.S.C.
§ 1802, with a certification stating that the
electronic surveillance is authorized under this
section and that all requirements of the section
have been met.
— Section 105(c)(2) of FISA: This section
requires an order approving electronic surveillance
under section 105 of FISA to direct an applicant
for the order to provide a [specified
communication carrier or other common] carrier,
landlord, custodian or other person furnishing aid
to the government with a certification stating that
the electronic surveillance is authorized under this
section and that all requirements of the section
have been met.
Sec. 20 of the bill, statute of limitations: This
No similar provision.
No similar provision.
section of the bill adds a 10 year statute of
limitations provision to section 109 of FISA, 50
U.S.C. § 1809, to be applicable to any offense
committed before the enactment of H.R. 3773, if
the statute of limitations applicable to that offense
has not run as of the date of enactment.

---

CRS-48
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
Sec. 21 of the bill, “No rights under the
No similar provision.
No similar provision.
RESTORE Act for undocumented aliens”: This
section states that the RESTORE Act and
amendments made by it are not to be construed to
prohibit surveillance of, or grant any rights to, an
alien not permitted to be in or remain in the U.S.
Sec. 22 of the bill, surveillance to protect the
No similar provision.
No similar provision.
U.S.: This section provides that the RESTORE Act
and any amendments made by it are not to be
construed to prohibit the intelligence community
from conducting lawful surveillance necessary to:
— prevent Osama Bin Laden, al Qaeda, or any
other terrorist or terrorist organization from
attacking the U.S, any U.S. person, or any ally of
the U.S.;
— ensure the safety and security of members of
the U.S. Armed Forces or any other federal officer
or employee involved in protecting the U.S.
national security; or
— protect the U.S., any U.S. person, or any ally of
the U.S. from threats posed by weapons of mass
destruction (WMD) or other threats to national
security.

---

CRS-49
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
No similar provision.
Title II of the bill deals with both retrospective
No similar provision.
and prospective protections for electronic
communication service providers furnishing aid
to the government.
Sec. 201 of the bill provides pertinent definitions.
In one such definition, the term “covered civil
action” is defined to mean a civil action filed in
federal or state court that alleges that an electronic
communication service provider furnished
assistance to an element of the intelligence
community; and seeks monetary or other relief
from the electronic communication service
provider related to the provision of such assistance.
No similar provision.
Sec. 202 of the bill, limitations on civil actions
No similar provision.
against electronic service providers:
Notwithstanding any other provision of law, Sec.
202(a) of the bill bars a covered civil action in a
federal or state court, and requires that such an
action must be promptly dismissed, if the AG
certifies to the court that the assistance alleged to
have been provided by the electronic
communication service provider was:
— in connection with an intelligence activity
involving communications that was authorized by
the President during the period beginning on
September 11, 2001, and ending on January 17,
2007; and designed to detect or prevent a terrorist
attack, or activities in preparation for a terrorist
attack, against the United States; and
— described in a written request or directive from

---

CRS-50
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
the A.G. or the head of an element of the
intelligence community (or the deputy of such
person) to the electronic communication service
provider indicating that the activity was authorized
by the President and determined to be lawful.
A covered civil action in federal or state court
would also be barred and should be promptly
dismissed if the AG certifies to the court that the
electronic communication service provider did not
provide the alleged assistance.
Judicial review of such certifications:
No similar provision.
Standard of review: Such a certification is to be
No similar provision.
subject to review by a court for abuse of discretion.
Procedure for review, limitations on disclosure:
No similar provision.
If the AG files a declaration under 28 U.S.C. §
1746 that disclosure of a certification made under
Sec. 202(a) of the bill would harm U.S. national
security, the court shall review the certification in
camera and ex parte, and limit public disclosure
concerning such certification, including any public
order following such ex parte review, to a
statement that the conditions of Sec. 202(a) of the
bill have been met, without disclosing the
subparagraph of Sec. 202(a)(1) that is the basis for
the certification.
The authorities of the AG under Sec. 202 are to be
performed by the AG or the Acting AG, or a
designee in a position not lower than the Deputy
AG.

---

CRS-51
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
Nothing in this section shall be construed to limit
any otherwise available immunity, privilege, or
defense under any other provision.
Civil action in State court removal: A civil
No similar provision.
action brought in State court against a person for
providing assistance to an element of the
intelligence community is to be deemed to arise
under the Constitution and laws of the U.S. and
shall be removable under 28 U.S.C. § 1441.
Effective date and application of Sec. 202 of bill:
No similar provision.
This section applies to any covered civil action
pending on or filed after the date of enactment of
S. 2248, the FISA Amendments Act of 2007.
No similar provision.
Sec. 203 of the bill, new title VIII of FISA:
No similar provision.
protection of persons assisting the government:
New section 801 of FISA, pertinent definitions.
No similar provision.
Among the definitions in new section 801 of FISA,
“assistance” means provision of, or provision of
access to, information (including communication
contents, communications records, or other
information relating to a customer or
communication), facilities, or other form of
assistance.
No similar provision.
New section 802 of FISA: procedures for
No similar provision.
implementing statutory defenses:
Limitation on civil actions, required AG
No similar provision, but see new section
certification: Notwithstanding any other
702(h)(3) of FISA; conforming amendment to 18
provision of law, this section bars any civil action
U.S.C. § 2511(2)(a) in Sec. 102(b) of the bill.

---

CRS-52
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
in federal or state court against any person for
providing assistance to an element of the
intelligence community if the AG certifies:
— that any assistance provided by that person was
provided pursuant to an FISC order;
— that any assistance by that person was provided
pursuant to a certification in writing under 18
U.S.C. §§ 2511(2)(a)(ii)(B) or 2709(a);
— that any assistance by that person was provided
pursuant to a directive under sections 102(a)(4),
105B(e) as in effect the day before enactment of S.
2248, or
703(h) of FISA directing such assistance; or
— the person did not provide the alleged
assistance.
Judicial review of such certifications:
No similar provision.
Standard of review: Such a certification is to be
No similar provision.
subject to review by a court for abuse of discretion.
Procedure for review, limitation on disclosure:
No similar provision.
If the AG files a declaration under 28 U.S.C. §
1746 that disclosure of a certification made under
Sec. 203(a) of the bill would harm U.S. national
security, the court shall review the certification in
camera and ex parte, and limit public disclosure
concerning such certification, including any public
order following such ex parte review, to a
statement that the conditions of Sec. 203(a) of the
bill have been met, without disclosing the
subparagraph of Sec. 203(a)(1) that is the basis for
the certification.

---

CRS-53
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
Nothing in this section shall be construed to limit
any otherwise available immunity, privilege, or
defense under any other provision.
Civil action in state court, removal: A civil
No similar provision.
action brought in state court against a person for
providing assistance to an element of the
intelligence community is to be deemed to arise
under the Constitution and laws of the U.S. and
shall be removable under 28 U.S.C. § 1441.
Effective date and application of Sec. 203 of bill:
No similar provision.
This section applies to any civil action pending on
or filed after the date of enactment of S. 2248, the
FISA Amendments Act of 2007.
No similar provision.
Sec. 204 of the bill, new section 803 of FISA,
No similar provision.
preemption of state investigations: This section
provides that no state shall have authority to
conduct an investigation into an electronic
communication service provider’s alleged
assistance to an element of the intelligence
community;
require through regulation or any other means the
disclosure of information about an electronic
communication service provider’s alleged
assistance to an element of the intelligence
community; impose any administrative sanction on
an electronic communication service provider for
assistance to an element of the intelligence
community; or commence or maintain a civil
action or other proceeding to enforce a

---

CRS-54
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
requirement that an electronic communication
service provider disclose information concerning
alleged assistance to an element of the intelligence
community.
The United States may bring suit to enforce the
provisions of new section 803 of FISA.
District Court Jurisdiction: U.S. district courts
No similar provision.
shall have jurisdiction over any civil action
brought by the U.S. to enforce the provisions of
new section 803 of FISA.
Application: This section shall apply to any
No similar provision.
investigation, action, or proceeding that is pending
on or filed after the date of enactment of S. 2248.
the FISA Amendments Act of 2007.
No similar provision.
Title III of the bill, other provisions:
No similar provision.
Sec. 301 of the bill is a severability provision.
Sec. 18 of the bill includes transition procedures,
Sec. 302 of the bill, effective date; repeal;
Cf., transition procedures addressed in new section
as discussed above.
transition procedures: The date of enactment of
702(c)(4) of FISA, discussed above.
S. 2248 is to be the effective date, except as
provided in subsection 302(c), dealing with
transitional procedures and authorizations and
directives in effect on the date of enactment of the
bill and on the date the bill sunsets.
Sec. 302(b) repeals sections 105A, 105B, and
105C of FISA, except as provided in section
302(c) of the bill.

---

CRS-55
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
Protection from liability: Sec. 302(c) provides
that section 105B(1) of FISA shall remain in effect
with respect to any directives issued pursuant to
section 105B for information, facilities, or
assistance provided during the period such
directive was or is in effect.
Orders in effect: Provides transitional procedures
with respect to applicability of orders,
authorizations, and directives in place on date of
enactment of s. 2248, on the expiration date of P.L.
110-55, and on December 31, 2013.
Under the new procedures, any orders issued under
FISA or Sec. 6(b) of P.L. 110-55 in effect on the
date of enactment of S. 2248 shall remain in effect
until the date of expiration, and shall be
reauthorized by the FISC at the request of the
applicant if the circumstances continue to justify
issuance of the order under the provisions of FISA
as in effect on the day before P.L. 110-55 was
enacted, except as amended by sections 102-109 of
S. 2248.
Orders under new title VII of FISA in effect on
December 31, 2013, shall continue in effect until
the expiration date of the order, and be governed
by the applicable provisions of FISA as amended
by Sec. 101 of S. 2248.
Authorizations and directives in effect on the date
of enactment of S. 2248 shall remain in effect until
expiration of the authorization or directive. Those
authorized under P.L.110-55 shall continue to be

---

CRS-56
S. 2248, amendment in the nature of a substitute
S. 2248 as reported by the
H.R. 3773 as passed by the House
reported by the
Senate Select Committee on Intelligence
Senate Judiciary Committee
governed by its provisions, except that they shall
be deemed electronic surveillance.
Information acquired from acquisitions under P.L.
110-55 shall be deemed acquired from electronic
surveillance, except for purposes of subsection
106(j) of FISA, 50 U.S.C. § 1806(j) (dealing with
notification of emergency employment of
electronic surveillance, contents, postponement).
Also provides transitional procedures with respect
to authorizations and directives in effect on
December 31, 2013.

Glossary of FISA Terms from 50 U.S.C. § 1801
As used in title I of FISA, 50 U.S.C. § 1801 et seq.:
(a) "Foreign power" means–
(1) a foreign government or any component thereof, whether or not recognized by the United States;
(2) a faction of a foreign nation or nations, not substantially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or
governments;
(4) a group engaged in international terrorism or activities in preparation therefor;
(5) a foreign-based political organization, not substantially composed of United States persons; or
(6) an entity that is directed and controlled by a foreign government or governments.

---

CRS-57
(b) "Agent of a foreign power" means–
(1) any person other than a United States person, who–
(A) acts in the United States as an officer or employee of a foreign power, or as a member of a foreign power as defined in subsection (a)(4) of this section;
(B) 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) engages in international terrorism or activities in preparation therefore; or
(2) any person who–
(A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a
violation of the criminal statutes of the United States;
(B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities
for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States;
(C) knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power;
(D) knowingly enters the United States under a false or fraudulent identity for or on behalf of a foreign power or, while in the United States, knowingly
assumes a false or fraudulent identity for or on behalf of a foreign power; or
(E) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person
to engage in activities described in subparagraph (A), (B), or (C).
(c) "International terrorism" means 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.

---

CRS-58
(d) "Sabotage" means activities that involve a violation of chapter 105 of title 18, or that would involve such a violation if committed against the United
States.
(e) "Foreign intelligence information" means–
(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.
(f) "Electronic surveillance" means–
(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.
(g) "Attorney General" means the Attorney General of the United States (or Acting Attorney General), the Deputy Attorney General, or, upon the
designation of the Attorney General, the Assistant Attorney General designated as the Assistant Attorney General for National Security under section 507A
of title 28, United States Code.

---

CRS-59
(h) "Minimization procedures", with respect to electronic surveillance, means–
(1) specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular
surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting
United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;
(2) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in subsection (e)(1) of this
section, shall not be disseminated in a manner that identifies any United States person, without such person's consent, unless such person's identity is
necessary to understand foreign intelligence information or assess its importance;
(3) notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has
been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and
(4) notwithstanding paragraphs (1), (2), and (3), with respect to any electronic surveillance approved pursuant to section 1802(a) of this title, 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.
(i) "United States person" means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101(a)(20) of
title 8), 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.
(j) "United States", when used in a geographic sense, means all areas under the territorial sovereignty of the United States and the Trust Territory of the
Pacific Islands.
(k) "Aggrieved person" means a person who is the target of an electronic surveillance or any other person whose communications or activities were subject
to electronic surveillance.
(l) "Wire communication" means 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.
(m) "Person" means any individual, including any officer or employee of the federal government, or any group, entity, association, corporation, or foreign
power.

---

CRS-60
(n) "Contents", when used with respect to a communication, includes any information concerning the identity of the parties to such communication or
the existence, substance, purport, or meaning of that communication.
(o) "State" means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Trust Territory of the Pacific Islands,
and any territory or possession of the United States.
CREDIT(S)
(P.L. 95-511, Title I, § 101, Oct. 25, 1978, 92 Stat. 1783; P.L. 106-120, Title VI, § 601, Dec. 3, 1999, 113 Stat. 1619; P.L. 107-56, Title X, § 1003, Oct.
26, 2001, 115 Stat. 392; P.L. 107-108, Title III, § 314(a)(1), (c)(2), Dec. 28, 2001, 115 Stat. 1402, 1403; P.L. 108-458, Title VI, § 6001(a), Dec. 17, 2004,
118 Stat. 3742; P.L. 109-177, Title V, § 506(a)(5), Mar. 9, 2006, 120 Stat. 248.)

---