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Summary of selected portions of the Senate amendment to H.R. 3773 and the House amendment to the Senate amendment.

Both the Senate amendment to H.R. 3773 and the House amendment to the Senate amendment to H.R. 3773 include amendments to the Foreign Intelligence Surveillance Act. The House amendment differs in a number of ways from the Senate-passed version of the bill. For example, the Senate amendment to H.R. 3773 provides, in new section 701 of FISA, that nothing in the definition of "electronic surveillance" under subsection 101(f) of FISA, 50 U.S.C. [section] 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 United States. The House has no parallel provision in its bill.

The two bills differ in their treatment of the role of the Foreign Intelligence Surveillance Court (FISC) with respect to procedures for acquisitions for the purpose of gathering foreign intelligence information of the contents of communications of U.S. persons and non-U.S. persons located outside the United States.

In the absence of an emergency authorization, the House amendment requires prior approval by the FISC of the applicable targeting procedures, minimization procedures, and certification before the Attorney General and the Director of National Intelligence (DNI) may authorize acquisition of the contents of communications of non-U.S. persons reasonably believed to be located outside the United States. The FISC would have 30 days after a certification is submitted to review the certification and the targeting and minimization procedures and to approve or deny an order regarding such an acquisition. The House bill also requires the Attorney General, in consultation with the DNI, to adopt guidelines to ensure compliance with limitations imposed by the bill on such acquisitions and to ensure that an application is filed under section 104 or 303 of FISA, if required by that act. The guidelines are to be submitted to the FISC, the congressional intelligence committees, and the House and Senate Judiciary Committees.

Under the House bill, if the FISC finds that the certification satisfies statutory requirements and targeting and minimization procedures are consistent with statutory standards and constitutional requirements under the Fourth Amendment, the FISC is to approve the certification and use of the procedures for the acquisition. In a nonemergency situation, if the FISC finds that a certification or applicable procedures fall short of these requirements, the court would deny the order, identify any deficiency in the certification or the procedures, and provide the government with an opportunity to correct such deficiency. If the Attorney General and the DNI determine that an emergency situation exists, that immediate action by the Government is required, and that time does not permit the completion of judicial review prior to the initiation of an acquisition, they may authorize the acquisition and submit a certification to the FISC as soon as possible but in no event more than seven days after the determination is made. In the context of an emergency authorization, the FISC would enter an order directing the government, at the government's election and to the extent required by the FISC's order, to correct any deficiency within 30 days or cease the acquisition.

In contrast, the Senate bill does not require prior approval by the FISC of applicable certifications, targeting procedures and minimization procedures in connection with the acquisition of communications of non-U.S. persons abroad, nor does it require adoption and submission of compliance guidelines. Rather, the Senate bill requires submission of a certification or a targeting or minimization procedure, or an amendment thereto, to the FISC within five days of making or amending the certification or adopting or amending the procedure. Where the Attorney General and the DNI determine that immediate action is required and time does not permit preparation of a certification prior to initiation of an acquisition, the Senate bill requires the Attorney General and the DNI to prepare the certification, including such determination, within seven days after the determination is made. If the FISC finds that a certification meets statutory requirements and targeting and minimization procedures are consistent with statutory requirements and meet constitutional standards under the Fourth Amendment, the FISC would enter an order approving continued use of the procedures involved. If the court finds that the required standards are not met, then the FISC would enter an order directing the government, at the government's election and to the extent required by the FISC order, to correct any deficiencies within 30 days or cease the acquisition.

The House provides that nothing in its bill is to be construed to require an application under section 104 of FISA for an acquisition that is targeted in accordance with new section 703 of FISA at a non-U.S. person reasonably believed to be located outside the United States. The Senate bill has no similar language.

Both bills provide for targeting of U.S. persons reasonably believed to be located outside the United States for up to 90 days pursuant to a FISC order if statutory criteria are met. Such an order could be renewed for additional 90 day periods upon submission of renewal applications meeting the same standards. In the case of an emergency authorization by the Attorney General of an acquisition, each bill requires notice to a FISC judge by the Attorney General or his designee at the time the decision is made to conduct such an acquisition and requires the filing of an application for a FISC order within seven days of the Attorney General's authorization of the emergency acquisition. Applicable minimization procedures would apply to such an acquisition. In the absence of a judicial order approving an acquisition originally authorized by the Attorney General on an emergency basis, the acquisition would terminate when the information sought is obtained, when an application for the order is denied, or when seven days have elapsed, whichever is earliest. Without a FISC order, no information acquired or evidence derived from an emergency acquisition, except under circumstances where the target of the acquisition is determined not to be a U.S. person, may be received in evidence or disclosed in federal, state, or local proceedings; nor could any information concerning a U.S. person acquired from such acquisition subsequently be used or disclosed in any other manner by federal officers or employees without the consent of such person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person.

The House and Senate bills differ as to how they craft language emphasizing the exclusivity of FISA as a means of engaging in electronic surveillance to gather foreign intelligence information. The House amendment would add a new section to FISA, providing that "the procedures of chapters 119, 121, and 206 of title 18, United States Code, (9) and [FISA] shall be the exclusive means by which electronic surveillance and the interception of domestic wire, oral, or electronic communications may be conducted," except for "an express statutory authorization for electronic surveillance or the interception of domestic wire, oral, or electronic communications, other than as an amendment to this Act or chapters 119, 121, or 206 of title 18, United States Code." The Senate amendment to H.R. 3773 would add a new section FISA, providing that "[t]he procedures of chapters 119, 121, and 206 of title 18, United States Code, and [FISA] shall be the exclusive means by which electronic surveillance (as defined in section 101(f), regardless of the limitation of section 701) and the interception of domestic wire, oral, or electronic communications may be conducted." (10)

Both bills would expand the definition of "foreign power" and "agent of a foreign power" under FISA to address groups or individuals, other than U.S. persons, that engage in international proliferation of weapons of mass destruction or activities in preparation therefor, although the House and Senate definitions of these terms differ somewhat. Both bills would also permit federal officers who engage in electronic surveillance or physical searches to obtain foreign intelligence information to consult with federal, state, or local law enforcement personnel to coordinate to investigate against international proliferation of weapons of mass destruction.

While both the House and the Senate provide prospective limitations of liability for those who furnish aid to the government in connection with acquisitions authorized under their respective bills, they differ in their treatment of electronic communication service providers who assisted the government with warrantless electronic surveillance for foreign intelligence purposes between September 11, 2001 and January 17, 2007. Title II of the Senate's version includes retroactive immunity for electronic communication service providers who may have furnished aid to the government from September 11, 2001, through January 17, 2007, if certain criteria are satisfied. (11) The House measure does not afford retroactive immunity to electronic communications service providers who may have furnished aid to the government in connection with the Terrorist Surveillance Program or other intelligence activities in the wake of the terrorist attacks of September 11, 2001. (12)

Title II of the House amendment provides a procedure by which a court, while taking steps to protect classified information, could examine submissions, arguments and information with respect to which state secrets privilege has been asserted in covered civil actions against such electronic communications service providers and other persons who may have furnished such aid to the government. The Senate amendment contains no parallel language.

In addition, the House amendment provides for an audit by the Inspector General of the Department of Justice of the Terrorist Surveillance Program and any similar programs. Within 30 days of completion of the audit, the bill would require that the report be submitted to the House and Senate intelligence committees and the House and Senate judiciary committees, along with any underlying documentation. The Senate bill has no similar provision. The House bill would also establish a Commission on Warrantless Electronic Surveillance within the legislative branch. No parallel provision exists in the Senate Amendment to H.R. 3773. The House bill provides additional manpower and training to facilitate submission to and disposition of applications to the FISC. The Senate amendment to H.R. 3773 does not address this issue.

In the following table, this report provides a detailed side-by-side comparison of the provisions of these two measures, using H.R. 3773 as passed by the Senate 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. [section] 1801 is attached to assist in understanding the effect of these measures. (The foreign intelligence surveillance act: comparison of the senate amendment to H.R. 3773 and the house amendment to the senate amendment to H.R. 3773)
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Title Annotation:The Foreign Intelligence Surveillance Act: Comparison of the Senate Amendment to H.R. 3773 and the House Amendment to the Senate Amendment to H.R. 3773
Author:Bazan, Elizabeth B.
Publication:Congressional Research Service (CRS) Reports and Issue Briefs
Date:Jun 1, 2008
Words:1802
Previous Article:Legislative activity.
Next Article:Glossary of FISA terms from 50 U.S.C. [section] 1801.

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