Amendments to the Foreign Intelligence Surveillance Act, 1994-2006

Amendments to the Foreign Intelligence Surveillance Act, 1994-2006

Amendments to the Foreign Intelligence Surveillance Act (FISA)

Public Law
Date Enacted
Title of Statute
Summary of Pertinent Provisions
P.L. 103-359
10/14/1994 Counterintelligence
and Physical Searches under FISA.

Security Enhancements Act
Sec. 807(a) amends FISA to redesignate former title III as title IV and
of 1994
former Section 301 as Section 401. The new title III of FISA, 50
U.S.C. § 1821 et seq., provides for physical searches for foreign
intelligence purposes. The new title:
–
provides pertinent definitions (Sec. 301 of FISA).

Physical searches without a court order of property used
exclusively by certain foreign powers.
– authorizes the President, acting through the Attorney General, to
authorize physical searches for foreign intelligence purposes
without a court order for periods of up to 1 year upon Attorney
General certification that
(1) the search is directed solely at premises, information,
material, or property used exclusively by, or under the
open and exclusive control of a foreign government or any
component thereof, whether or not recognized by the
United States; a faction of a foreign nation or nations, not
substantially composed of United States persons; or an
entity that is openly acknowledged by a foreign
government or governments to be directed and controlled
by such foreign government or governments;
(2) that there is no substantial likelihood that the physical
search will involve the premises, information, material, or
property of a U.S. person; and
(3) that the proposed minimization procedures with respect
to the search meet the definition of minimization
procedures in new section 301(4) of FISA.
A copy of the certification must be provided to the FISA court
immediately. This section also requires the Attorney General to
report any minimization procedures and any changes thereto to
the House Permanent Select Committee on Intelligence and the
Senate Select Committee on Intelligence (Intelligence
Committees) 30 days in advance, unless the Attorney General
determines that immediate action is required and notifies the
committees immediately of the minimization procedures and the

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Public Law
Date Enacted
Title of Statute
Summary of Pertinent Provisions
reasons for their going into effect immediately. The Attorney
General must assess compliance with these procedures and report
on compliance to the Intelligence Committees. (Sec. 302(a) of
FISA.)

Physical searches pursuant to court order
– sets out the requirements for an application to the Foreign
Intelligence Surveillance Court (FISA court) for an ex parte order
approving a physical search for foreign intelligence purposes
(Sec. 303 of FISA);
–
establishes requirements for issuance of such an order or an
extension of an order; generally, an order may be issued for a
period necessary to achieve its purpose or for 45 days, whichever
is less; however, an order targeted on a foreign power as defined
in section 101(a)(1), (2), or (3) of FISA (a foreign government or
any component thereof, whether or not recognized by the United
States; a faction of a foreign nation or nations, not substantially
composed of United States persons; or an entity that is openly
acknowledged by a foreign government or governments to be
directed and controlled by such foreign government or
governments) may be for the period specified in the application or
for 1 year, whichever is less (Sec. 304(a)-(c) of FISA); and
– gives the FISA court jurisdiction to hear applications and grant
orders for physical searches to obtain foreign intelligence
information within the U.S. (Sec. 302(c) of FISA). The
government may seek review by the Foreign Intelligence
Surveillance Court of Review (Court of Review) of a denial of an
application for a court order. (Sec. 302(d) of FISA).

Emergency physical searches upon Attorney General certification.
– Authorizes the Attorney General to authorize execution of an
emergency physical search, based upon a determination that an
emergency situation exists with respect to the execution of a
physical search to obtain foreign intelligence information before
an order authorizing such search can with due diligence be
obtained and that the factual basis for an order to approve the
search exists, if he notifies a FISA court judge at the time of the
execution and if an application to that judge is made as soon as
practicable but not later than 24 hours after the Attorney General
authorizes the search. Minimization procedures must be

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Public Law
Date Enacted
Title of Statute
Summary of Pertinent Provisions
followed. If the application for an order is denied, or if the
physical search is terminated and no order authorizing it is
obtained, no information obtained or evidence derived from the
search may be used in a federal, state, or local proceeding; and no
information concerning a U.S. person may subsequently be used
or disclosed in any other manner by federal officers or employees
without the consent of the U.S. person, except with Attorney
General approval if the information indicates a threat of death or
serious bodily harm to any person. A denial may be reviewed by
the Foreign Intelligence Surveillance Court of Review (Court of
Review) under section 302 of FISA. (Sec. 304(d) of FISA).

Use of information obtained by or derived from a physical search
under FISA.
– establishes limitations and notification requirements regarding the
use of information acquired from a physical search pursuant to
this title (Sec. 305 of FISA).

Congressional oversight.
– provides for semiannual reports to the Intelligence Committees
concerning all searches conducted under this title; and requires
semiannual reports to the Intelligence Committees and the House
and Senate Judiciary Committees on the number of applications
for physical searches; the total number of orders granted,
modified, or denied; the number of physical searches; the number
of physical searches which involved U.S. persons; and the
number of occasions, if any, where the Attorney General, in the
context of a search of the residence of a U.S. person, determined
that no national interest required continued secrecy of the search
and provided notice to that U.S. person of the search and
identified the property of that U.S. person seized, altered or
reproduced (Sec. 306 of FISA).

Criminal penalties.
– imposes criminal penalties for intentionally engaging in physical
searches for foreign intelligence purposes under color of law
except as authorized by statute, or for intentional disclosure or use
of information obtained under color of law by physical search
within the United States for the purpose of obtaining intelligence
information, knowing or having reason to know that the

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Date Enacted
Title of Statute
Summary of Pertinent Provisions
information was gathered through a physical search not
authorized by statute (Sec. 307 of FISA).

Civil liability.
– provides a civil right of action for actual and punitive damages,
plus reasonable attorneys fees, to U.S. persons aggrieved by
violations of the criminal provision in Sec. 307 of FISA (Sec. 308
of FISA).

Physical searches without court order under FISA for up to 15
days after congressional declaration of war.
– authorizes the President, through the Attorney General, to
authorize physical searches without a court order under this title
to acquire foreign intelligence information for up to 15 calendar
days following a declaration of war by Congress (Sec. 309 of
FISA).

Clerical amendments and effective dates.
– Section 807(b) makes pertinent clerical amendment to the FISA
table of contents.
– Section 807(c) makes these amendments effective 90 days after
the date of enactment, but provides that any physical search
conducted within 180 days after date of enactment pursuant to
regulations issued by the Attorney General which were in
possession of the Intelligence Committees before the date of
enactment shall not be deemed unlawful.
P.L.105-272 10/20/1998 Intelligence
Authorization Pen Register or Trap and Trace Devices under FISA. Title VI,
Act for Fiscal Year 1999
section 601, amends FISA to redesignate former title IV as title VI and
to insert a new title IV in FISA, 50 U.S.C. § 1841 et seq., to provide
for the use of pen registers and trap and trace devices in foreign
intelligence and international terrorism investigations. Under the new
title:
–
it provides pertinent definitions (Sec. 401 of FISA).

Pen registers or trap and trace devices pursuant to court order.
–
it authorizes the Attorney General or a designated government
attorney to apply for an order or an extension of an order from a
FISA court judge, or a U.S. magistrate judge publicly designated
to hear such applications and grant such orders on behalf of a

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Public Law
Date Enacted
Title of Statute
Summary of Pertinent Provisions
FISA court judge, authorizing or approving installation and use of
a pen register or trap and trace device for any FBI investigation to
gather foreign intelligence information or information concerning
international terrorism conducted under applicable Attorney
General guidelines pursuant to E.O. 12333 or a successor order
(Sec. 402(a)-(b) of FISA);
– it sets out requirements for an application for a order authorizing
installation and use of a pen register or trap and trace device
under FISA, and for an application for extension of such an order
(Sec. 402(b) of FISA);
– each application, approved by the Attorney General or his
designee, shall include the identity of the federal officer seeking
to use the pen register or trap and trace device; a certification by
the applicant that the information likely to be obtained is relevant
to an ongoing foreign intelligence or international terrorism
investigation by the FBI under Attorney General guidelines;
information demonstrating reason to believe that the telephone
line to which the pen register or trap and trace device is to be
attached or communication device covered by it has been or is
about to be used in communications with an individual who is
engaging in or has engaged in terrorism or clandestine
intelligence activities that involve or may involve a violation of
U.S. criminal laws; or a foreign power or agent of a foreign power
giving reason to believe that the communication concerns or
concerned international terrorism or clandestine intelligence
activities that involve or may involve a violation of U.S. criminal
laws. (Sec. 402(c) of FISA).
– it establishes requirements for ex parte order or extension of an
order authorizing installation or use of pen register or trap and
trace device under FISA; an order may be for up to 90 days; any
extension of an order may be for no more than 90 days (Sec.
402(d)-(e) of FISA).
– it provides immunity from suit to any wire or electronic
communication providers, landlord, custodian, or other person
that provides information, facilities or technical assistance
pursuant to a court order under this title (Sec. 402(f) of FISA).

Emergency authorization of pen register or trap and trace device.
–
the new title authorizes the Attorney General to authorize
installation and use of a pen register or trap and trace device on an

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Public Law
Date Enacted
Title of Statute
Summary of Pertinent Provisions
emergency basis to gather foreign intelligence information or
information concerning international terrorism if notice is given
to a FISA court judge or his designee at the time of the
authorization and if an application for a court order is made as
soon as practicable, but within 48 hours after the Attorney
General’s emergency authorization. Authorization must be based
upon a reasonable determination by the Attorney General that an
emergency requires installation and use of a pen register or trap
and trace device to obtain foreign intelligence information or
information concerning international terrorism before a court
order with due diligence can be obtained under Sec. 402 of FISA,
and that the factual basis for issuance of such an order exists. If
the application is denied, or if the installation and use of a pen
register or trap and trace device is terminated and no order is
issued approving it, no information or evidence obtained or
derived from the use of the pen register or trap and trace device
may be disclosed in a federal, state, or local proceeding; and no
information concerning a U.S. person may be subsequently used
or disclosed by any federal officer or employee without the
consent of the person, except with the approval of the Attorney
General if the information indicates a threat of death or serious
bodily harm to any person. (Sec. 403 of FISA).

Pen register or trap and trace device without court order for up to
15 days following congressional declaration of war.
– it authorizes the President, through the Attorney General, to
authorize the use of a pen register or trap and trace device without
a court order to acquire foreign intelligence information for up to
15 calendar days following a declaration of war by Congress
(Sec. 404 of FISA);

Use of information obtained or derived from pen register or trap
and trace device.
– it provides limitations and notification requirements regarding the
use of information obtained or derived from the use of a pen
register or trap and trace device under this title (Sec. 405(a)-(d) of
FISA).
– it provides that an aggrieved person, against whom evidence
gathered through use of a FISA pen register or trap and trace
device is to be or has been introduced, may move to suppress

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Public Law
Date Enacted
Title of Statute
Summary of Pertinent Provisions
information from a pen register or trap and trace device which is
unlawfully acquired or not obtained in conformity with the order.
The U.S. district court in which the motion is filed or in the
district in which the information is sought to be used has
jurisdiction. If the Attorney General files an affidavit under oath
that disclosure or any adversary hearing would harm U.S. national
security, the court shall provide ex parte review (Sec. 405(e)-(g)
of FISA).

Congressional oversight.
– it provides for semiannual reports by the Attorney General to the
Intelligence Committees concerning the use of pen registers and
trap and trace devices under FISA. Also provides for semiannual
statistical reports to the Intelligence Committees and the House
and Senate Judiciary Committees regarding total numbers of
applications for installation and use of pen registers or trap and
trace devices under FISA and total number of orders granted,
modified, or denied (Sec. 406 of FISA).

Access to Certain Business Records for Foreign Intelligence and
International Terrorism Investigations under FISA. Section 602
inserts a new title V to FISA, authorizing access to certain types of
business records for foreign intelligence and international terrorism
investigations. The new title:
–
includes pertinent definitions (sec. 501 of FISA);

Access to certain business records pursuant to court order.
–
authorizes the Director of the FBI or his designee no lower in
rank than Assistant Special Agent in Charge to apply for an order
from a FISA court judge or a U.S. magistrate judge publicly
designated by the Chief Justice of the U.S. to hear applications
and grant orders on behalf of a FISA court judge authorizing a
common carrier, public accommodation facility, physical storage
facility, or vehicle rental facility to release records in its
possession for an investigation to gather foreign intelligence
information or an investigation concerning international terrorism
conducted by the FBI under Attorney General guidelines
approved pursuant to E.O. 12333 or a successor order. An
application must specify that the records are sought for such an
investigation and that there are specific and articulable facts

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Public Law
Date Enacted
Title of Statute
Summary of Pertinent Provisions
giving reason to believe that the person to whom the records
pertain is a foreign power or an agent of a foreign power (Sec.
502(a)-(b) of FISA.)
– provides that, if the judge finds the application satisfies the
requirements of the section, he or she shall enter an ex parte order
as requested or as modified approving release of the records
requested. The order may not disclose that it is issued for purpose
of such an investigation. (Sec. 502(c) of FISA.)
– mandates compliance with the order by any common carrier,
public accommodation facility, physical storage facility, or
vehicle rental facility, and prohibits disclosure by a common
carrier, public accommodation facility, physical storage facility,
or vehicle rental facility, or any officer, employee or agent thereof
(except to the extent needed to comply with the order), from
disclosing that the FBI has sought or obtained records under such
an order. (Sec. 502(d) of FISA.)

Congressional oversight.
– requires a semiannual report to the Intelligence Committees by
the Attorney General concerning such records requests. Also
requires a semiannual report by the Attorney General to the
Intelligence Committees and the House and Senate Judiciary
Committees on the total number of applications for such business
records and the total number of orders granted, modified, or
denied. (Sec. 503 of FISA.)
P.L. 106-120
12/03/1999
Intelligence Authorization
Amendment to definition of agent of a foreign power.
Act for Fiscal Year 2000
Title VI amends Section 101(b)(2) of FISA (50 U.S.C. § 1801(b)(2))
by expanding the statutory definition of an “agent of a foreign power"
to include anyone who:
–
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.
P.L. 106-567
12/27/2000
Intelligence Authorization
Attorney General review, upon request, of applications for court
for Fiscal Year 2001 (Title
orders to authorize electronic surveillance where the target may
VI, Counterintelligence
be an agent of a foreign power who is a U.S. person.
Reform Act of 2000)
Title VI, Section 602(a) amends the Section 104 of FISA (50 U.S.C.
1804)) by adding subsection (e), providing that upon written request

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Summary of Pertinent Provisions
of the FBI Director, the Secretary of Defense, the Secretary of State,
or the CIA Director, the Attorney General shall personally review the
application for a FISA court order authorizing electronic surveillance
of an agent of a foreign power, as defined in 50 U.S.C. § 1801(b)(2),
which covers any person, including a U.S. person, who 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; 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; knowingly
engages in sabotage or international terrorism, or activities that are in
preparation therefor, for or on behalf of a foreign power; 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 knowingly aids or abets any person in the conduct of
activities described above, except that involving use of a false identity,
or knowingly conspires with any person to engage in such activities.
Except in the case of disability or unavailability, the authority to make
such a request may not be delegated. If, as a result of such a request,
the Attorney General does not approve the application, he must give
notice of his determination to the requesting official, noting
modifications, if any, necessary for the Attorney General to approve
the application.

In deciding whether to issue an order authorizing electronic
surveillance, FISA court judge’s probable cause determination
may take into account target’s past activities.
Section 105 of FISA (50 U.S.C. § 1805) describes the procedures with
which a FISA judge must comply in issuing an order for electronic
surveillance. Among other things, the FISA judge must find that, on
the basis of the facts submitted by the applicant, there is probable
cause to believe that (A) the target of the electronic surveillance is a
foreign power or agent of a foreign power (provided that no United
States person may be considered a foreign power or an agent of a
foreign power solely upon the basis of activities protected by the First
Amendment to the U.S. Constitution); and (B) each of the facilities or
places at which the electronic surveillance is directed is being used, or

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is about to be used, by a foreign power or an agent of a foreign power.
Title VI, Section 602(b) amends Sec. 105 of FISA to permit a judge,
in determining whether such probable cause exists, to consider past
activities of the target, as well as facts and circumstances relating to
current or future activities of the target.

Attorney General review, upon request, of applications for court
orders to authorize physical search where the target may be an
agent of a foreign power who is a U.S. person.
Section 603(a) amends the FISA physical search authority (Section
303 of FISA (50 U.S.C. § 1823) by adding subsection (d), providing
that upon written request of the FBI Director, the Secretary of
Defense, the Secretary of State, or the CIA Director, the Attorney
General shall personally review the application for such physical
search of an agent of a foreign power as defined in 50 U.S.C. §
1801(b)(2), which may include U.S. persons. Such requesting
authority may not be delegated, except in cases of disability or
unavailability. If the Attorney General, in reviewing an application
upon such request, determines not to approve the application, he shall
give the requesting official notice, noting modifications, if any,
necessary for the Attorney General to approve the application.

In deciding whether to issue an order authorizing a physical
search, FISA court judge’s probable cause determination may
take into account target’s past activities.
Section 603(b) amends Section 304 of FISA (50 U.S.C. § 1824) to
provide that a FISA judge, in determining whether or not such
probable cause exists to believe that the target of the physical search is
a foreign power or an agent of a foreign power (except that no United
States person may be considered an agent of a foreign power solely
upon the basis of activities protected by the First Amendment to the
U.S. Constitution) and that the premises or property to be searched is
owned, used, possessed by, or is in transit to or from an agent of a
foreign power or a foreign power– may consider past activities of the
target, as well as facts and circumstances relating to current or future
activities of the target.

Congressional oversight.
Section 604(a) expands the types of information that the Attorney
General must include in his semiannual report to Congress concerning

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FISA electronic surveillance (Section 108(a) of FISA (50 U.S.C. §
1808(a)), to include a description of each criminal case in which
information acquired under FISA has been passed for law enforcement
purposes, and each criminal case in which information acquired under
FISA has been authorized for use at trial during the reporting period.

Section 604(b) requires the Attorney General to submit a report to the
Intelligence Committees and to the House and Senate Judiciary
Committees, describing the authorities and procedures used by the
Department of Justice for determining whether or not to disclose
information acquired under FISA for law enforcement purposes.
P.L. 107-56
10/26/2001
Uniting and Strengthening
Roving wiretaps under FISA.
America by Providing
Section 206 amends Sec. 105(c)(2)(B) of FISA to permit roving or
Appropriate Tools Required
multipoint wiretaps where the court finds that the actions of the target
to Intercept and Obstruct
of the application for electronic surveillance under FISA may have the
Terrorism (USA Patriot Act)
effect of thwarting the identification of a specified communication or
Act of 2001
other common carrier, landlord, custodian, or other specified person to

whom the order to furnish information, facilities or technical
assistance should be directed.

Duration of FISA wiretaps or physical searches and extensions
thereof.
Sec. 207(a)(1) amends section 105(e)(1) of FISA to provide that an
order for electronic surveillance targeted against an agent of a foreign
power who is non-U.S. person acting within the U.S. as an officer or
employee of a foreign power or as a member of a group engaged in
international terrorism or in activities in preparation therefor may be
for the period specified in the application or for 120 days, whichever
is less. Prior to the amendment, all orders for electronic surveillance
were for 90 days.

Extensions of orders for electronic surveillance under FISA are
available under the same conditions as the original orders, with certain
exceptions. Section 207(b)(1) amended Sec. 105(d)(2) of FISA [this
was an error in P.L. 107-56, Sec. 207(b)(1), which should read Sec.
105(e)(2) of FISA] to provide that an extension of an order for
surveillance targeted against an agent of a foreign power who is non-
U.S. person acting within the U.S. as an officer or employee of a
foreign power or as a member of a group engaged in international

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terrorism or in activities in preparation therefor may be for a period of
up to 1 year.

Sec. 207(a)(2) amends section 304(d)(1) of FISA to extend the period
during which an order for a physical search from the period necessary
to achieve its purpose or 45 days, whichever is less, to the period
necessary to achieve its purpose or 90 days, whichever is less. It also
added a new exception to this, which provided that an order for a
physical search against an agent of a foreign power who is non-U.S.
person acting within the U.S. as an officer or employee of a foreign
power or as a member of a group engaged in international terrorism or
in activities in preparation therefor may be for the period specified in
the application or for 120 days, whichever is less.

Extensions of orders for FISA physical searches may be granted on
the same basis as the original order, with certain exceptions. Section
207(b)(2) amended Sec. 304(d)(2) to add a new exception, which
provided that extensions of an order against an agent of a foreign
power who is non-U.S. person acting within the U.S. as an officer or
employee of a foreign power or as a member of a group engaged in
international terrorism or in activities in preparation therefor may be
for a period not to exceed 1 year, if the judge finds probable cause to
believe that no property of any individual U.S. person will be acquired
during that period.

Increase in number of FISA court judges.
Section 208 increases the number of FISA court judges from 7 to 11,
three of whom must reside within 20 miles of the District of
Columbia.

Pen register and trap and trace authority under FISA.
Section 214(a)(1) amends Sec. 402(a)(1) of FISA to replace authority
to make an application to the FISA court for an order authorizing the
installation and use of a pen register or trap and trace device “for any
investigation to gather foreign intelligence information or information
concerning international terrorism” with authority to make an
application to the FISA court for such an order “for any investigation
to obtain foreign intelligence information not concerning a United
States person or to protect against international terrorism or
clandestine intelligence activities, provided that such investigation of a

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United States person is not conducted solely upon the basis of
activities protected by the first amendment to the Constitution.”

Certification requirements for application for court order.
Section 214(a)(2) amends Sec. 402(c)(2) amended the certification
requirements for an application for a court order authorizing the
installation and use of a pen register or trap and trace device under
FISA to require that an applicant for such an order certify that the
information likely to be obtained is relevant to an ongoing
investigation to protect against international terrorism or clandestine
intelligence activities, provided that such investigation of a U.S.
person is not conducted solely upon the basis of activities protected by
the first amendment of the Constitution.

Deletion of former Sec. 402(c)(3) of FISA.
Section 214(a)(3) struck out former Sec. 402(c)(3), which read:

“(3) information which demonstrates that there is reason to
believe that the telephone line to which the pen register or trap
and trace device is to be attached, or the communication
instrument or device to be covered by the pen register or trap
and trace device, has been or is about to be used in
communication with–
(A) an individual who is engaging or has engaged in
international terrorism or clandestine intelligence
activities that involve or may involve a violation of the
criminal laws of the United States; or
(B) a foreign power or agent of a foreign power under
circumstances giving reason to believe that the
communication concerns or concerned international
terrorism or clandestine intelligence activities that involve
or may involve a violation of the criminal laws of the
United States.”

Pen registers and trap and trace devices may be used to track
electronic communications, such as e-mail, in addition to
telephone communications.
Section 214(a)(3) rewrote Sec. 402(d)(2)(A) of FISA, to permit the
use of pen registers or trap and trace devices for electronic
communications, such as e-mail, as well as telephone

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communications. The new Sec. 402(d)(2)(A) provides that, if the
FISA court judge or U.S. magistrate judge finds that the application
satisfies the requirements of this section, an order issued under this
shall specify “the identity, if known, of the person who is the subject
of the investigation;” “the identity, if known, of the person to whom is
leased or in whose name is listed the telephone line or other facility to
which the pen register or trap and trace device is to be attached or
applied;” and “the attributes of the communications to which the order
applies, such as the number or other identifier, and, if known, the
location of the telephone line or other facility to which the pen register
or trap and trace device is to be attached or applied and, in the case of
a trap and trace device, the geographic limits of the trap and trace
order.”

Emergency authorization of pen register or trap and trace device
under FISA.
Section 214(b) amends Sec. 403(a) and (b)(1) of FISA to permit the
Attorney General, while pursuing a court order, to authorize the
installation and use of a pen register or trap and trace device on an
emergency basis, to gather “foreign intelligence information not
concerning a United States person or information to protect against
international terrorism or clandestine intelligence activities, provided
that such investigation of a United States person is not conducted
solely upon the basis of activities protected by the first amendment to
the Constitution” before an order authorizing the installation and use
of the pen register or trap and trace device, as the case may be, can
with due diligence be obtained under Sec. 402 of FISA can be
obtained. This language indicates that requests for pen register or trap
and trace devices under FISA, like those for electronic surveillance or
physical searches under FISA, may not be pursued based solely on
first amendment protected activities of U.S. citizens or permanent
resident aliens.

Former business records provisions replaced with new provisions
dealing with access to records and other tangible things in foreign
intelligence and international terrorism investigations.
Section 215 replaces former Sec. 501 through Sec. 503 in title V of
FISA with new Sec. 501 and Sec. 502 of FISA. Under the new Sec.
501, the FBI Director or his designee, whose rank shall be no lower

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than Assistant Special Agent in Charge, may apply for a court order
requiring production of any tangible things (including books, records,
papers, documents, and other items) for an investigation to protect
against international terrorism or clandestine intelligence activities,
provided that such investigation of a U.S. person is not conducted
solely on the basis of first amendment protected activities. An
investigation under this section must be conducted pursuant to
Attorney General guidelines pursuant to E.O. 12333 or a successor
order. The application shall be made to a FISA court judge or a U.S.
magistrate judge publicly designated by the Chief Justice to hear
applications and grant orders on behalf of a FISA court judge. The
application must specify that the records concerned are sought for an
authorized investigation to obtain foreign intelligence information not
concerning a U.S. person or to protect against international terrorism
of clandestine intelligence activities. If the judge finds that the
application meets the requirements of this section, he or she shall enter
an ex parte order as requested or as modified. The order shall not
disclose that it is issued for purposes of such an investigation. (Sec.
501(a)-(c).)

Congressional oversight.
Sec. 502 of FISA requires the Attorney General, on a semiannual
basis, to fully inform the Intelligence Committees concerning all
requests for production of tangible things under Sec. 402 [sic, should
be Sec. 501], and to report to the Intelligence Committees and the
House and Senate Judiciary Committees semi-annually on the total
number of applications made for orders approving requests for
production of tangible things under Sec. 402 [sic, should be Sec. 501],
and the total number of such orders granted, modified or denied.

Non-disclosure requirement.
Sec. 501(d) of FISA prohibits any person from disclosing to any other
person, other than those necessary to production of the tangible things
required, that the FBI has sought or obtained tangible things under
Sec. 501 of FISA.

Immunity from liability for those who, in good faith, produce
tangible things pursuant to an order under this section.
Sec. 501(e) of FISA immunizes persons who, in good faith, produce
tangible things pursuant to an order under Sec. 501 of FISA, from

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liability to any other person. Production does not constitute a waiver
of any privilege in any other proceeding or context.

Change in certification requirement for electronic surveillance
and physical searches under FISA from “the purpose” being
gathering of foreign intelligence information to “a significant
purpose” being gathering of foreign intelligence information.
Under Section 218, Sec. 104(a)(7)(B) and Sec. 303(a)(7)(B) of FISA,
50 U.S.C. §§ 1804(a)(7)(B) and 1823(a)(7)(B) respectively, are
amended to strike “the purpose” and to replace it with “a significant
purpose.” As amended, under Sec. 104(a)(7)(B), in an application for
a FISA court order authorizing electronic surveillance, a national
security official must certify that “a significant purpose” of the
surveillance is to gather foreign intelligence information. Similarly, in
an application for an order authorizing a physical search under FISA,
a national security official must certify, under the amended Sec.
303(a)(7)(B), that “a significant purpose” of the search is to gather
foreign intelligence information. This has been interpreted to mean
that the primary purpose of the electronic surveillance or physical
search may be criminal investigation, as long as a significant purpose
of the surveillance or search is to gather foreign intelligence
information.

Sunset.
Section 224 provides in pertinent part that, except with respect to any
foreign intelligence investigation that began before the date on which
the provisions are to sunset, all provisions of title II of the USA
PATRIOT Act, other than sections 203(a), 203(c), 205, 208, 211, 213,
216, 219, 221, and 222, and amendments to those sections, would
cease to have effect on December 31, 2005. The provisions pertinent
to FISA that would sunset are addressed in sections 206, 207, 214,
215, 218, 223, and 225 of the USA PATRIOT Act.

Immunity from liability for those providing assistance with a
FISA court order authorizing electronic surveillance or with an
emergency electronic surveillance.
Section 225 amends Sec. 105 of FISA, 50 U.S.C. § 1805, to add a new
subsection (h) which provides that no cause of action shall lie against
any wire or electronic service provider, custodian, landlord, or other

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person that furnishes information, facilities, or technical assistance
pursuant to a court order under FISA or a request for emergency
assistance under FISA.

Coordination with law enforcement .
Section 504 amends Sec. 106 of FISA, 50 U.S.C. § 1806, and Sec. 305
of FISA, 50 U.S.C. § 1825, to add a new subsection (k) to each
section. Under this new subsections, federal officials conducting
electronic surveillance or physical searches under FISA may consult
with federal law enforcement officers to coordinate efforts to
investigate or protect against actual or potential attack or other grave
hostile acts of a foreign power or an agent of a foreign power,
sabotage or international terrorism by a foreign power or an agent of a
foreign power, or clandestine intelligence activities by an intelligence
service or network of a foreign power or by an agent of a foreign
power. Such coordination does not preclude a certification under Sec.
104(a)(7)(B) of FISA or Sec. 303(a)(7) of FISA by a national security
official that “a significant purpose” of the electronic surveillance or
the physical search at issue is to obtain foreign intelligence
information. Nor does such coordination preclude entry of an order
authorizing electronic surveillance or a physical search under FISA.

Amendment to definition of “electronic surveillance” under FISA.
Section 1003 amends the definition of “electronic surveillance” under
Sec. 101(f)(2) of FISA, 50 U.S.C. § 1801(f)(2), to indicate that it does
not include “the acquisition of those communications of computer
trespassers that would be permissible under [18 U.S.C. §] 2511(2)(i).”

Other FISA-Related Provisions of P.L. 107-56.
Civil liability for certain unauthorized disclosures.
Section 223 adds a new 18 U.S.C. § 2712, which establishes a claim
against the United States in U.S. district court for not less than
$10,000 plus costs for violations of FISA, among other provisions. It
also notes the possibility of administrative sanctions for federal
officials who engage in such violations.

Responsibilities of the Director of Central Intelligence (DCI)
regarding foreign intelligence collected under FISA.
Section 901 amends Sec. 103(c) of the National Security Act of 1947,
as amended, to reflect the responsibility of the DCI to establish

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requirements and priorities for foreign intelligence information to be
collected under FISA and to provide assistance to the Attorney
General to ensure that information derived from electronic
surveillance or physical searches under that act is disseminated so that
it may be used efficiently and effectively for foreign intelligence
purposes, except that the DCI has no authority to direct, manage, or
undertake electronic surveillance or physical search operations under
FISA unless otherwise authorized by statute or executive order.

P.L. 107-108
12/28/2001
Intelligence Authorization
Technical amendments.
Act for FY 2002
Section 314(a)(1) amends the definition of “minimization procedures”
under Sec. 101(h)(4) of FISA to mean, in pertinent part, with respect
to any electronic surveillance approved pursuant to Sec. 102(a) of
FISA, “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.” The
amendment replaced “24 hours” with “72 hours.”

Section 314(a)(2)(A) amends Sec. 105 of FISA to insert “, if known”
in Sec. 105(c)(1)(B), so that an order authorizing electronic
surveillance under FISA must specify, in pertinent part, the nature and
location of each of the facilities or places at which the electronic
surveillance will be directed, if known.

Section 314(a)(2)(B) amends Sec. 105(f) of FISA to replace “24
hours” with “72 hours” in each place it appears, so that the Attorney
General would have a 72 hour window after he authorizes an
emergency electronic surveillance to obtain foreign intelligence
information in which to make an application for a FISA court order
authorizing such electronic surveillance. In the absence of a judicial
order approving the electronic surveillance, the surveillance shall
terminate when the information sought is obtained, when the
application for the order is denied, or after the expiration of 72 hours
from the time of authorization by the Attorney General, whichever is
earliest.

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Section 314(a)(2)(C) redesignates Sec. 105(h) of FISA as added by
P.L. 107-56, Section 225, as Sec. 105(i) of FISA.

Section 314(a)(2)(D) amends Sec. 105(i) of FISA, dealing with release
from liability to add “for electronic surveillance or physical search”
before the period, so that the provision would read:

No cause of action shall lie in any court against any provider of
a wire or electronic communication service, landlord,
custodian, or other person (including any officer, employee,
agent, or other specified person thereof) that furnishes any
information, facilities, or technical assistance in accordance
with a court order or request for emergency assistance under
this chapter for electronic surveillance or physical search.

Section 314(a)(3) amends the definition of “minimization procedures”
for physical searches under FISA in Sec. 301(4)(D) to replace “24
hours” with “72 hours.” In pertinent part, the definition, as amended,
reads:

(D) notwithstanding subparagraphs (A), (B), and (C), with
respect to any physical search approved pursuant to section
1822(a) of this title, procedures that require that no
information, material, or property of a United States person
shall be disclosed, disseminated, or used for any purpose or
retained for longer than 72 hours unless a court order under
section 1824 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.

Section 314(a)(4) amends Sec. 304(e) of FISA to replace “24 hours”
with “72 hours.” This would provide the Attorney General a 72 hour
window, instead of a 24 hour window, after he authorizes an
emergency physical search to obtain foreign intelligence information,
in which to make an application for a FISA court order authorizing
such search. In the absence of a judicial order approving the search, it
shall terminate when the information sought is obtained, when the
application for the order is denied, or after the expiration of 72 hours
from the time of authorization by the Attorney General, whichever is
earliest.

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Section 314(a)(5) amends Sec. 402(c)(1) to add “and” at the end of the
paragraph, and Sec. 402(f) of FISA to replace “of a court” with “of an
order issued.” The first of these amendments simply connects the two
subsections that the requirements for an application for a court order
to authorize installation and use of a pen register or trap and trace
device under FISA. Sec. 402(f) of FISA, which bars a right of action,
then reads:

No cause of action shall lie in any court against any provider of
a wire or electronic communication service, landlord,
custodian, or other person (including any officer, employee,
agent, or other specified person thereof) that furnishes any
information, facilities, or technical assistance under subsection
(d) of this section in accordance with the terms of an order
issued under this section.

Section 314(a)(6) amends Section 501(a) of FISA to insert “to obtain
foreign intelligence information not concerning a United States person
or” after “an investigation” so that the provision reads:

(a)(1) Subject to paragraph (3), the Director of the Federal
Bureau of Investigation or a designee of the Director (whose
rank shall be no lower than Assistant Special Agent in Charge)
may make an application for an order requiring the production
of any tangible things (including books, records, papers,
documents, and other items) for an investigation to obtain
foreign intelligence information not concerning a United States
person or to protect against international terrorism or
clandestine intelligence activities, provided that such
investigation of a United States person is not conducted solely
upon the basis of activities protected by the first amendment to
the Constitution.

Section 314(a)(7) amends Sec. 502 of FISA to replace “section 402”
with “section 501,” correcting the error noted above.

Section 314(a)(8) amends the table of contents.

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P.L. 107-296
11/25/2002
Homeland Security Act of
Amendments to Sec. 106(k)(1) of FISA and Sec. 305(k)(1) of FISA
2002
to permit those who conduct electronic surveillance or physical
searches under FISA to consult with certain state and local law
enforcement officers, as well as federal law enforcement officers.
Sections 898 and 899 amend Sec. 106(k)(1) and Sec. 305(k)(1) of
FISA dealing with coordination with law enforcement by those who
conduct electronic surveillance or physical searches under FISA,
respectively. As amended, the provision would permit those who
conduct electronic surveillance or physical searches under FISA,
respectively, to consult, not only with federal law enforcement
officers, but with law enforcement personnel of a State or political
subdivision of a State (including the chief executive officer of that
State or political subdivision who has the authority to appoint or direct
the chief law enforcement officer of that State or political subdivision)
to coordinate efforts to investigate or protect against actual or
potential attack or other grave hostile acts of a foreign power or an
agent of a foreign power, sabotage or international terrorism by a
foreign power or an agent of a foreign power, or clandestine
intelligence activities by an intelligence service or network of a
foreign power or by an agent of a foreign power.

P.L. 108-458
12/17/2004
Intelligence Reform and
Conforming amendments regarding role of Director of National
Terrorism Prevention Act of
Intelligence (DNI).
2004
SEC. 1071(e) makes conforming amendments to FISA related to roles

of the DNI by striking "Director of Central Intelligence" each place it
appears and inserting "Director of National Intelligence".

“Lone wolf” amendment to definition of “agent of a foreign
power.”
Section 6001 amends the definition of “agent of a foreign power” in
Sec. 101(b)(1) of FISA to add a new subsection 101(b)(1)(C). Under
this new language, any person other than a U.S. person who “engages
in international terrorism or activities in preparation therefore [sic]” is
deemed to be an agent of a foreign power under FISA.

Congressional oversight.
Section 6002, redesignates title VI as title VII, and adds a new title VI
providing additional semiannual reporting requirements by the
Attorney General to the Intelligence Committees and the House and

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Senate Judiciary Committees. New Sec. 601 directs the Attorney
General, on a semiannual basis, to report to these four committees, in
a manner consistent with the protection of the national security, with
respect to the preceding 6-month period, the aggregate number of
persons targeted for orders issued under this Act, including a
breakdown of those targeted for electronic surveillance under section
105, physical searches under section 304, pen registers under section
402, and access to records under section 501. The report shall also
address the number of individuals covered by an order issued pursuant
to section 101(b)(1)(C), the number of times that the Attorney General
has authorized that information obtained under this Act may be used
in a criminal proceeding or any information derived therefrom may be
used in a criminal proceeding, a summary of significant legal
interpretations of this Act involving matters before the Foreign
Intelligence Surveillance Court or the Foreign Intelligence
Surveillance Court of Review, including interpretations presented in
applications or pleadings filed with the Foreign Intelligence
Surveillance Court or the Foreign Intelligence Surveillance Court of
Review by the Department of Justice; and copies of all decisions (not
including orders) or opinions of the Foreign Intelligence Surveillance
Court or Foreign Intelligence Surveillance Court of Review that
include significant construction or interpretation of the provisions of
this Act.

Clerical amendments were also to be made to the table of contents of
FISA.
P.L. 109-160
12/30/2005
Extension of Sunset of
Extension of sunset of certain FISA provisions (among others) to
Certain Provisions of the
February 3, 2006.
USA Patriot Act (extending
sunset provisions of USA
Patriot Act, including
certain FISA provisions,
until February 3, 2006 (as
codified as a note under 18
U.S.C. §2510))

P.L. 109-170
02/03/2006
Extension of Sunset of
Extension of sunset of certain FISA provisions (among others) to
Certain Provisions of the
March 10, 2006.

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USA Patriot Act (extending
sunset provisions of USA
Patriot Act, including
certain FISA provisions,
until March 10, 2006 (as
codified as a note under 18
U.S.C. §2510))

P.L.109-177 03/09/2006 USA
PATRIOT
Extension of Sunsets.
Improvement and
Section 102 adopts a sunset of December 31, 2009, for FISA court
Reauthorization Act of 2005
orders for multipoint, or "roving," wiretaps under Sec. 105 of FISA,
50 U.S.C. § 1805(a), and for FISA court orders for access to business
records under Sec. 501 of FISA, 50 U.S.C. § 1861.

Duration of FISA Surveillance Orders.
Section 105 extends the maximum duration of FISA surveillance and
physical search orders against any agent of a foreign power who is not
a U.S. person by amending Sec. 105(e) and Sec. 304 of FISA to
provide the following:

–
Initial orders authorizing such searches may be for a period of up
to 120 days, with renewal orders permitted to extend the period
for up to one year.
–
The tenure for both initial orders and extension orders authorizing
installation and use of FISA pen registers and trap and trace
devices is extended from a period of 90 days to one year in cases
where the government has certified that the information likely to
be obtained is foreign intelligence information not concerning a
U.S. person.

FISA Business Record Orders.
Section 106(a)(2) amends Section 501 of FISA (50 U.S.C. § 1861) to
add 50 U.S.C. § 1861(a)(3), requiring that an application for the
production of certain sensitive categories of business records, such as
library, bookstore, firearm sales, tax return, educational, and medical
records, must be personally approved by one of the following three
high-level officials: the FBI Director, the FBI Deputy Director, or the
Executive Assistant Director for National Security.

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Section 106(b) amends 50 U.S.C. § 1861(b)(2) to require that an
application for a business record must include a "statement of facts"
demonstrating that there are reasonable grounds to believe that the
tangible things sought are "relevant" to an authorized or preliminary
investigation to protect against international terrorism or espionage, or
to obtain foreign intelligence information not concerning a U.S.
person. Section 106(b)(2)(A) also provides that certain tangible items
are "presumptively relevant" to an investigation if the application's
statement of facts shows that the items sought pertain to:

–
a foreign power or an agent of a foreign power,
–
the activities of a suspected agent of a foreign power who is the
subject of such authorized investigation, or
–
an individual in contact with, or known to, a suspected agent of a
foreign power who is the subject of such authorized investigation.

50 U.S.C. § 1861(c)(1) provides that a FISA court judge shall approve
an application for a FISA business record order as requested or as
modified, upon a finding that the application complies with statutory
requirements. Section 106(d) of P.L. 109-177 requires that such ex
parte order must contain a particularized description of the items
sought, provide for a reasonable time to assemble them, notify
recipients of nondisclosure requirements, and be limited to things
subject to a grand jury subpoena or order of a U.S. court for
production.

Section 106(e) adds 50 U.S.C. § 1861(d)(1)(B), (C), to expressly
permit that a recipient of a FISA business record order may disclose
its existence to an attorney to obtain legal advice, as well as to other
persons approved by the FBI. However, Section 106(e) adds 50
U.S.C. § 1861(d)(2)(C), providing that upon the request of the FBI
Director (or his designee), the recipient must disclose to the FBI the
identity of the person to whom the disclosure will be or was made–
unless that individual is the attorney sought to obtain legal advice (this
exception was created by Section 4 of P.L. 109-178, discussed infra).

Section 106(f) amends Section 501 of FISA (50 U.S.C. § 1861) to
establish a detailed judicial review process for recipients of FISA
business record orders to challenge their legality before a judge
selected from a pool of FISA court judges:

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–
If the judge determines that the petition is not frivolous after an
initial review, the judge has discretion to modify or set aside a
FISA order upon a finding that it does not comply with the statute
or is otherwise unlawful.
–
However, if the judge does not modify or rescind the business
record production order, then the judge must immediately affirm
the order and direct the recipient to comply with it.
–
The FISA Court of Review and the Supreme Court are granted
jurisdiction to consider appeals of the FISA court judge's decision
to affirm, modify, or set aside a the order.

Section 106(g) amends Section 501 of FISA (50 U.S.C. § 1861) to add
a new subsection (g), directing the Attorney General to promulgate
“minimization procedures” that apply to the collection and
dissemination of information obtained through the use of FISA
business record authority, in order to limit the retention, and regulate
the dissemination, of nonpublicly available information concerning
unconsenting U.S. persons. Federal authorities are directed to observe
these minimization procedures regarding the use or disclosure of
information received under a FISA business record order; furthermore,
they may not use or disclose such information except for lawful
purposes.

Section 106(h) amends Section 502 of FISA (50 U.S.C. § 1862) to
direct the Attorney General to submit to Congress an annual report
regarding the use of FISA business record authority. The annual
report, due every April, must contain the following information
regarding the preceding year:

–
the total number of applications made
–
the total number of business record orders granted as requested,
granted as modified, or denied, and
–
the number of orders either granted, modified, or denied for the
production of each of the following: library circulation records,
library patron lists, book sales records, or book customer lists;
firearms sales records; tax return records; educational records;
and medical records containing information that would identify a
person.

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Section 106A provides for the Inspector General of the Department of
Justice to conduct a comprehensive audit to determine the
effectiveness, and identify any abuses, concerning the use of FISA
business record authority, for calendar years 2002-2006. The results of
the audit are to be submitted in an unclassified report to the House and
Senate Committees on the Judiciary and Intelligence.

Multipoint Electronic Surveillance (Roving Wiretaps)
Section 108(a)(1) amends the FISA roving surveillance authority
(Section 104(a)(3) of FISA, codified at 50 U.S.C. § 1804(a)(3)) to
require that an application for an order, as well as the wiretap order
itself, describe the specific target of the electronic surveillance if the
target's identity is not known. Section 108(a)(2) also clarifies that the
FISA court must find that the prospect of a target thwarting
surveillance is based on specific facts in the application. Section
108(b) provides that if the government begins to direct surveillance at
a new facility or place, the nature and location of which were
unknown at the time the original surveillance order was issued, the
government must notify the FISA court within 10 days after such
change, of the following information:

–
the nature and location of each new facility or place at which the
surveillance is directed,
–
the facts and circumstances relied upon by the applicant to justify
the applicant's belief that each new facility or place is or was
being used, or is about to be used, by the target of the
surveillance,
–
an explanation of any proposed minimization procedures that
differ from those contained in the original application or order, if
such change is necessitated by the new facility or place, and
–
the total number of electronic surveillances that have been or are
being conducted under the roving surveillance order.

Section 108(c) enhances congressional oversight over the use of all
foreign intelligence electronic surveillance authority, by adding the
Senate Judiciary Committee as a recipient of the semi-annual FISA
reports that the Attorney General currently must submit to the House
and Senate Intelligence committees, and by modifying the FISA report
requirements to include a description of the total number of
applications made for orders approving roving electronic surveillance.

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Other Enhancement of Congressional Oversight over Certain
FISA Authority
Section 109(a) enhances congressional oversight over the use of
emergency physical searches under Section 306 of FISA (50 U.S.C. §
1826), by requiring, on a semi-annual basis, the Attorney General:

–
to make full reports concerning all physical searches to the Senate
Judiciary Committee in addition to the House and Senate
Intelligence committees, and
–
to submit to the House Judiciary Committee a report with
statistical information concerning the number of emergency
physical search orders authorized or denied by the Attorney
General.

Section 109(b) requires that the report the Attorney General submits to
the House and Senate Judiciary Committees semi-annually concerning
the number of applications and orders for the FISA use of pen
registers or trap and trace devices (Section 406(b) of FISA, 50 U.S.C.
§ 1846(b)), must include statistical information regarding the
emergency use of such devices.

Section 109(d) amends Section 103 of FISA (50 U.S.C. § 1803) by
adding subsection (f), requiring the FISA court to publish its rules and
procedures and transmit them in unclassified form to all judges on the
FISA court, the FISA Court of Review, the Chief Justice of the United
States, and the House and Senate Judiciary and Intelligence
Committees.

Section 128(a) amends Section 402(d)(2) of FISA (50 U.S.C. §
1842(d)(2)) to permit the FISA court, in its pen register/trap and trace
order, to direct a communications service provider to supply customer
information relating to use of the device. Such information may
include the name and address of the customer or subscriber; the
telephone number or other subscriber number or identifier, including
any temporarily assigned network address or associated routing or
transmission information; the length of the provision of service by
such provider to the customer or subscriber and the types of services
utilized by the customer or subscriber; any local or long distance
telephone records of the customer or subscriber; any records reflecting

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period of usage (or sessions) by the customer or subscriber; and any
mechanisms and sources of payment for such service, including the
number of any credit card or bank account utilized for payment for
such service.

Section 128(b) amends Section 406(a) of FISA (50 U.S.C. § 1846(a))
to provide that the House and Senate Judiciary Committees receive
full reports on the use of the FISA's pen register and trap and trace
authority every six months.

Section 506 amends Section 101(g) of FISA (50 U.S.C. § 1801(g)) to
authorize the Attorney General to delegate authority to the Assistant
Attorney General for National Security (as designated under 28 U.S.C.
§ 507A(a)) to perform the Attorney General's duties under FISA.

P.L.109-178
03/09/2006
USA PATRIOT Act
Judicial Review for Nondisclosure Requirement of a FISA
Additional Reauthorizing
Business Record Order
Amendments Act of 2006
Section 3 amends subsection (f) of section 501 of FISA (50 U.S.C. §
1861), to establish a judicial review procedure for the nondisclosure
order that accompanies a FISA business record order:

–
For one year after the date of the issuance of a FISA order for the
production of tangible items, the nondisclosure requirement
remains in full effect and may not be challenged.
–
After the one-year waiting period has expired, the recipient of the
production order may petition the FISA court to modify or set
aside the nondisclosure requirement. Within 72 hours, if the judge
assigned to consider the petition determines after an initial review
that the petition is frivolous, the judge shall immediately deny the
petition and affirm the nondisclosure order. If, after the initial
review, the judge determines that the petition is not frivolous, the
judge shall promptly consider the petition under procedural
measures that the FISA court has established to protect national
security, including conducting the review in camera.
–
The FISA court judge has discretion to modify or set aside a
nondisclosure order upon a finding that there is no reason to
believe that disclosure may endanger the national security of the
United States; interfere with a criminal, counterterrorism, or
counterintelligence investigation; interfere with diplomatic

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relations; or endanger the life or physical safety of any person.
–
If, at the time the individual files the petition for judicial review
of a nondisclosure order, the Attorney General, Deputy Attorney
General, an Assistant Attorney General, or the Director of the FBI
certifies that disclosure may endanger the national security of the
United States or interfere with diplomatic relations, then the FISA
judge must treat such government certification as conclusive
unless the judge finds that the certification was made in bad faith.
–
If the judge grants a petition to quash the nondisclosure
requirement, upon the request of the government, such order is
stayed pending review of the decision to the FISA Court of
Review. If the judge denies the petition to modify or set aside the
nondisclosure requirement, the recipient of the 215 order is
precluded from filing another such petition for one year.
–
The FISA Court of Review has jurisdiction to consider a petition
by the government or by the recipient of a 215 order and to
review a FISA judge's decision to affirm, modify, or set aside
such production order or the nondisclosure order imposed in
connection with it. The U.S. Supreme Court has jurisdiction to
review a decision of the FISA Court of Review concerning this
matter.

Under 50 U.S.C. § 1861(d)(1), a recipient of a FISA production order
may disclose its existence to persons to whom disclosure is necessary
to comply with such order, an attorney to obtain legal advice, as well
as to other persons approved by the FBI. Section 4 of P.L. 109-178
amends 50 U.S.C. § 1861(d)(2)(C) to exempt explicitly from the
identification disclosure requirement the name of the attorney sought
to obtain legal advice with respect to the FISA production order.