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Week Ending August 3, 2007

S.1927 A bill to amend the Foreign Intelligence Surveillance Act of 1978 to provide additional procedures for authorizing certain acquisitions of foreign intelligence information and for other purposes.

Electronic surveillance by the Federal government is governed by a 1976 law called the Foreign Intelligence Surveillance Act and the process is overseen by a pool of judges called the FISA Court. Under that law, surveillance of US citizens in the US is prohibited and the government must apply to the court for a warrant to perform surveillance of foreign telecommunications.

The law provides that the surveillance can be performed without a warrant under certain circumstances, immediate need in particular. In that case a warrant must be applied for within 72 hours from when the surveillance began. If the Court denies the warrant the surveillance must stop. The Bush Administration was recently found by the Court to have violated the FISA Act by not applying for warrants on numerous surveillance efforts.

This bill amends FISA but still requires notification to the Court of warrantless surveillance within 72 hours. The bill also requires that  "a sealed copy of the certification" be sent and "that will remain sealed unless the certification is needed to determine the legality of the acquisition."

The bill provides that the Director of National Intelligence (DNI) and the Attorney General (AG) may authorize for periods up to one year the acquisition of foreign intelligence information concerning persons reasonably believed to be outside the US.

The bill does not necessarily prohibit surveillance of someone in the US. It does say that “Nothing in the definition of electronic surveillance under section 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States.” 101 (f) defines electronic surveillance this way:

"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,". (More of this definition below) That provision is interpreted to mean that a surveillance is not prohibited if a person in the US is caught up in the web of surveillance of foreign targets.

The DNI and AG may determine to acquire the intelligence if, based on information they have been provided:

• There is reason to believe that the target of the acquisition is outside the US and that the procedures used will be subject to the review of the Court (FISA Court)

• That the acquisition does not constitute electronic surveillance,

• That the acquisition involves obtaining the foreign intelligence with the assistance of a telecommunications service provider or other persons who have access to communications, either as they are transmitted or while they are stored, or access to equipment being used to transmit or store the communications.

• That the significant purpose of the procedure is to acquire foreign intelligence information.

The certification of the determination (sent to the Court) shall be written, signed under oath and supported by affidavit of security officials appointed by the President and confirmed by the Senate, or the head of any intelligence community agency.

If the determination requires immediate action and time does not permit preparing a certification, the certification supporting the determination will be submitted in writing to the Court no more than 72 hours after it is made. The AG will transmit as soon as possible to the Court a sealed copy of the certification that will remain sealed unless the certification is needed to determine the legality of the acquisition.

The DNI and AG are authorized to direct a person to immediately provide the Government with all information, facilities and assistance necessary to accomplish the acquisition and will do so in a manner that protects the secrecy of the acquisition and produces a minimum of interference with the service being provided to the person targeted for the acquisition. The DNI and AG may also direct the cooperating person to maintain under security procedures any records concerning the acquisition or aid furnished. No cause of action can be heard in any court against any person for providing any information, facilities or assistance in accordance with the directive.

The cooperating person will be compensated at the prevailing rate for the assistance.

If a person fails to comply, the Court can compel cooperation. The court will issue an order requiring cooperation. Failure to cooperate can be punished as contempt of court.

A person receiving the directive to cooperate can challenge the legality of the directive by filing a petition to the Court. The petition must be reviewed within 48 hours. If the judge determines the petition is not frivolous the judge will consider the petition within 72 hours and will provide a written decision on the matter.

The judge can only support, or grant, a petition of challenge if it determines the directive is illegal. If the directive is legal the judge will order the person to comply. Any directive not specifically modified or set aside by the judge will remain in effect.

Court proceedings will be conducted expeditiously. Any records of the proceeding will be maintained under security measures established by the Chief Justice of the US in consultation with the DNI and the AG. The directive will be maintained for no less than ten years.

In 120 days the AG will create and submit to the Court the procedures by which the Government determines that acquisitions conducted do not constitute electronic surveillance. If the court does not find that the procedures are erroneous it will approve the procedures. If the procedures are found erroneous the Government must submit new procedures within 30 days or cease acquisitions.  The court will provide a detailed explanation of its decision and will seal the explanation. The AG is to update the submission annually.

The AG will report to Congress semi-annually with:

• a description of any incidents of non-compliance with a directive issued;

• incidents of non-compliance with the guidelines or procedures established for determining that the acquisition concerns persons outside the United States by any entity of the Intelligence Community;

• incidents of noncompliance by a specified person to whom the Attorney General and Director of National Intelligence issued a directive;

• the number of certifications and directives issued in the preceding 6 months.

Except as otherwise provided, the amendments made by this Act shall take effect immediately after the date of the enactment of this Act. The bill authority ends in six months after which it must be revisited.

Sponsor:  Senator Mitch McConnell (R-KY

Vote: Passed the Senate August 3, 2007 60 to 28 .RV 309 The House passed the bill 227 to 183 August 4, 2007 RC 836

Cost to the taxpayers: No discernible cost.

Earmark Certification:   Not applicable to this bill

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MORE INFORMATION

`CLARIFICATION OF ELECTRONIC SURVEILLANCE OF PERSONS OUTSIDE THE UNITED STATES

`Sec. 105A. Nothing in the definition of electronic surveillance under section 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside 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.

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