S.Amdt. 3863

SA 3863. Mr. KENNEDY submitted an amendment intended to be proposed
by him to the bill S. 2248, to amend the Foreign Intelligence
Surveillance Act of 1978, to modernize and streamline the provisions of
that Act, and for other purposes; which was ordered to lie on the
table; as follows:

On page 6, line 20, strike ``and'' and all that follows
through page 19, line 16, and insert the following:
``(3) shall be conducted in a manner consistent with the
fourth amendment to the Constitution of the United States;
and
``(4) shall not intentionally acquire any communication as
to which the sender and all intended recipients are known at
the time of the acquisition to be located in the United
States.
``(c) United States Persons Located Outside the United
States.--
``(1) Acquisition inside the united states of united states
persons outside the united states.--An acquisition authorized
by subsection (a) that occurs inside the United States may
not target a United States person except in accordance with
the provisions of title I.
``(2) Acquisition outside the united states of united
states persons outside the united states.--An acquisition by
an electronic, mechanical, or other surveillance device
outside the United States may not intentionally target a
United States person reasonably believed to be outside the
United States to acquire the contents of a wire or radio
communication sent by or intended to be received by 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 if the technique
were used inside the United States unless--
``(A) the Attorney General or the Attorney General's
designee submits an application to the Foreign Intelligence
Surveillance Court that includes a statement of the facts and
circumstances relied upon by the applicant to justify the
Attorney General's belief that the target of the acquisition
is a foreign power or an agent of a foreign power; and
``(B) the Foreign Intelligence Surveillance Court--
``(i) finds on the basis of the facts submitted by the
applicant there is probable cause to believe that the target
of the electronic surveillance is a foreign power or an agent
of a foreign power; and
``(ii) issues an ex parte order as requested or as modified
approving the targeting of that United States person.
``(3) Procedures.--
``(A) Submittal to foreign intelligence surveillance
court.--Not later than 30 days after the date of the
enactment of this title, the Attorney General shall submit to
the Foreign Intelligence Surveillance Court the procedures to
be utilized in determining whether a target reasonably
believed to be outside the United States is a United States
person.
``(B) Approval by foreign intelligence surveillance
court.--The procedures submitted under subparagraph (A) shall
be utilized as described in that subparagraph only upon the
approval of the Foreign Intelligence Surveillance Court.
``(C) Utilization in targeting.--Any targeting of persons
authorized by subsection (a) shall utilize the procedures
submitted under subparagraph (A) as approved by the Foreign
Intelligence Surveillance Court under subparagraph (B).
``(d) Conduct of Acquisition.--An acquisition authorized
under subsection (a) may be conducted only in accordance
with--
``(1) a certification made by the Attorney General and the
Director of National Intelligence pursuant to subsection (g);
and
``(2) the targeting and minimization procedures required
pursuant to subsections (e) and (f).
``(e) Targeting Procedures.--
``(1) Requirement to adopt.--The Attorney General, in
consultation with the Director of National Intelligence,
shall adopt targeting procedures that are reasonably designed
to ensure that any acquisition authorized under subsection
(a) is limited to targeting persons reasonably believed to be
located outside the United States and does not result in the
intentional acquisition of any communication as to which the
sender and all intended recipients are known at the time of
the acquisition to be located in the United States.
``(2) Judicial review.--The procedures referred to in
paragraph (1) shall be subject to judicial review pursuant to
subsection (i).
``(f) Minimization Procedures.--
``(1) Requirement to adopt.--The Attorney General, in
consultation with the Director of National Intelligence,
shall adopt, consistent with the requirements of section
101(h), minimization procedures for acquisitions authorized
under subsection (a).
``(2) Persons in the united states.--The minimization
procedures required by this subsection shall require the
destruction, upon recognition, of any communication as to
which the sender and all intended recipients are known to be
located in the United States, a person has a reasonable
expectation of privacy, anda warrant would be required for
law enforcement purposes, unless the Attorney General
determines that the communication indicates a threat of death
or serious bodily harm to any person.
``(3) Judicial review.--The minimization procedures
required by this subsection shall be subject to judicial
review pursuant to subsection (i).
``(g) Certification.--
``(1) In general.--
``(A) Requirement.--Subject to subparagraph (B), prior to
the initiation of an acquisition authorized under subsection
(a), the Attorney General and the Director of National
Intelligence shall provide, under oath, a written
certification, as described in this subsection.
``(B) Exception.--If the Attorney General and the Director
of National Intelligence determine that immediate action by
the Government is required and time does not permit the
preparation of a certification under this subsection prior to
the initiation of an acquisition, the Attorney General and
the Director of National Intelligence shall prepare such
certification, including such determination, as soon as
possible but in no event more than 168 hours after such
determination is made.
``(2) Requirements.--A certification made under this
subsection shall--
``(A) attest that--
``(i) there are reasonable procedures in place for
determining that the acquisition authorized under subsection
(a) is targeted at persons reasonably believed to be located
outside the United States, and does not result in the
intentional acquisition of any communication as to which the
sender and all intended recipients are known at the time of
the acquisition to be located in the United States, and that
such procedures have been approved by, or will promptly be
submitted for approval by, the Foreign Intelligence
Surveillance Court pursuant to subsection (i);
``(ii) the procedures referred to in clause (i) are
consistent with the requirements of the fourth amendment to
the Constitution of the United States and do not permit the
intentional targeting of any person who is known at the time
of acquisition to be located in the United States, or result
in the intentional acquisition of any communication as to
which the sender and all intended recipients are known at the
time of the acquisition to be located in the United States;
``(iii) a significant purpose of the acquisition is to
obtain foreign intelligence information;
``(iv) the minimization procedures to be used with respect
to such acquisition--

``(I) meet the definition of minimization procedures under
section 101(h);
``(II) require the destruction, upon recognition, of any
communication as to which the sender and all intended
recipients are known to be located in the United States, a
person has a reasonable expectation of privacy, and a warrant
would be required for law enforcement purposes, unless the
Attorney General determines that the communication indicates
a threat of death or serious bodily harm to any person; and
``(III) have been approved by, or will promptly be
submitted for approval by, the Foreign Intelligence
Surveillance Court pursuant to subsection (i);

``(v) the acquisition involves obtaining the foreign
intelligence information from or with the assistance of an
electronic communication service provider; and
``(vi) the acquisition does not constitute electronic
surveillance, as limited by section 701; and
``(B) be supported, as appropriate, by the affidavit of any
appropriate official in the area of national security who
is--
``(i) appointed by the President, by and with the consent
of the Senate; or
``(ii) the head of any element of the intelligence
community.

[[Page S15775]]

``(3) Limitation.--A certification made under this
subsection is not required to identify the specific
facilities, places, premises, or property at which the
acquisition authorized under subsection (a) will be directed
or conducted.
``(4) Submission to the court.--The Attorney General shall
transmit a copy of a certification made under this
subsection, and any supporting affidavit, under seal to the
Foreign Intelligence Surveillance Court as soon as possible,
but in no event more than 5 days after such certification is
made. Such certification shall be maintained under security
measures adopted by the Chief Justice of the United States
and the Attorney General, in consultation with the Director
of National Intelligence.
``(5) Review.--The certification required by this
subsection shall be subject to judicial review pursuant to
subsection (i).
``(h) Directives.--
``(1) Authority.--With respect to an acquisition authorized
under subsection (a), the Attorney General and the Director
of National Intelligence may direct, in writing, an
electronic communication service provider to--
``(A) immediately provide the Government with all
information, facilities, or assistance necessary to
accomplish the acquisition in a manner that will protect the
secrecy of the acquisition and produce a minimum of
interference with the services that such electronic
communication service provider is providing to the target;
and
``(B) maintain under security procedures approved by the
Attorney 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.
``(2) Compensation.--The Government shall compensate, at
the prevailing rate, an electronic communication service
provider for providing information, facilities, or assistance
pursuant to paragraph (1).
``(3) Release from liability.--Notwithstanding any other
law, no cause of action shall lie in any court against any
electronic communication service provider for providing any
information, facilities, or assistance in accordance with a
directive issued pursuant to paragraph (1).
``(4) Challenging of directives.--
``(A) Authority to challenge.--An electronic communication
service provider receiving a directive issued pursuant to
paragraph (1) may challenge the directive by filing a
petition with the Foreign Intelligence Surveillance Court.
``(B) Assignment.--The presiding judge of the Court shall
assign the petition filed under subparagraph (A) to 1 of the
judges serving in the pool established by section 103(e)(1)
not later than 24 hours after the filing of the petition.
``(C) Standards for review.--A judge considering a petition
to modify or set aside a directive may grant such petition
only if the judge finds that the directive does not meet the
requirements of this section or is otherwise unlawful. If the
judge does not modify or set aside the directive, the judge
shall immediately affirm such directive, and order the
recipient to comply with the directive. The judge shall
provide a written statement for the record of the reasons for
a determination under this paragraph.
``(D) Continued effect.--Any directive not explicitly
modified or set aside under this paragraph shall remain in
full effect.
``(5) Enforcement of directives.--
``(A) Order to compel.--In the case of a failure to comply
with a directive issued pursuant to paragraph (1), the
Attorney General may file a petition for an order to compel
compliance with the directive with the Foreign Intelligence
Surveillance Court.
``(B) Assignment.--The presiding judge of the Court shall
assign a petition filed under subparagraph (A) to 1 of the
judges serving in the pool established by section 103(e)(1)
not later than 24 hours after the filing of the petition.
``(C) Standards for review.--A judge considering a petition
shall issue an order requiring the electronic communication
service provider to comply with the directive if the judge
finds that the directive was issued in accordance with
paragraph (1), meets the requirements of this section, and is
otherwise lawful. The judge shall provide a written statement
for the record of the reasons for a determination under this
paragraph.
``(D) Contempt of court.--Failure to obey an order of the
Court issued under this paragraph may be punished by the
Court as contempt of court.
``(E) Process.--Any process under this paragraph may be
served in any judicial district in which the electronic
communication service provider may be found.
``(6) Appeal.--
``(A) Appeal to the court of review.--The Government or an
electronic communication service provider receiving a
directive issued pursuant to paragraph (1) may file a
petition with the Foreign Intelligence Surveillance Court of
Review for review of the decision issued pursuant to
paragraph (4) or (5) not later than 7 days after the issuance
of such decision. The Court of Review 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.
``(B) Certiorari to the supreme court.--The Government or
an electronic communication service provider receiving a
directive issued pursuant to paragraph (1) may file a
petition for a writ of certiorari for review of the decision
of the Court of Review issued under subparagraph (A). The
record for such review shall be transmitted under seal to the
Supreme Court of the United States, which shall have
jurisdiction to review such decision.
``(i) Judicial Review.--
``(1) In general.--
``(A) Review by the foreign intelligence surveillance
court.--The Foreign Intelligence Surveillance Court shall
have jurisdiction to review any certification required by
subsection (d) or targeting and minimization procedures
adopted pursuant to subsections (e) and (f).
``(B) Submission to the court.--The Attorney General shall
submit to the Court any such certification or procedure, or
amendment thereto, not later than 5 days after making or
amending the certification or adopting or amending the
procedures.
``(2) Certifications.--The Court shall review a
certification provided under subsection (g) to determine
whether the certification contains all the required elements.
``(3) Targeting procedures.--The Court shall review the
targeting procedures required by subsection (e) to assess
whether the procedures are reasonably designed to ensure that
the acquisition authorized under subsection (a) is limited to
the targeting of persons reasonably believed to be located
outside the United States and does not result in the
intentional acquisition of any communication as to which the
sender and all intended recipients are known at the time of
the acquisition to be located in the United States.
``(4) Minimization procedures.--The Court shall review the
minimization procedures required by subsection (f) to assess
whether such procedures--
``(A) meet the definition of minimization procedures under
section 101(h); and
``(B) require the destruction, upon recognition, of any
communication as to which the sender and all intended
recipients are known to be located in the United States, a
person has a reasonable expectation of privacy, and a warrant
would be required for law enforcement purposes, unless the
Attorney General determines that the communication indicates
a threat of death or serious bodily harm to any person.
______