S.Amdt. 3933

SA 3933. Mr. WYDEN submitted an amendment intended to be proposed to
amendment SA 3911 proposed by Mr. Rockefeller (for himself and Mr.
Bond) 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:

Beginning on page 24, strike line 20 and all that following
through page 48, line 3, and insert the following:
Sec. 704. Acquisition inside the united states of united
states persons outside the united states.--An acquisition
authorized under subsection (a) that occurs inside the United
States and--
``(A) constitutes electronic surveillance (regardless of
the limitation in section 701(a)), or
``(B) is an acquisition of stored electronic communications
or stored electronic data that otherwise requires a court
order under this Act,

may not intentionally target a United States person
reasonably believed to be outside the United States, except
in accordance with title I or III. For the purposes of an
acquisition under this subsection, the term `agent of a
foreign power' as used in those titles shall include a person
who is an officer or employee of a foreign power.
Sec. 705. Other Acquisition of united states persons
outside the united states.--
``(A) Jurisdiction and scope.--
``(i) Jurisdiction.--The Foreign Intelligence Surveillance
Court shall have jurisdiction to enter an order pursuant to
subparagraph (C).
``(ii) Scope.--No element of the intelligence community may
intentionally target, for the purpose of acquiring foreign
intelligence information, a United States person reasonably
believed to be located outside the United States under
circumstances in which the targeted United States person has
a reasonable expectation of privacy and a warrant would be
required if the acquisition were conducted inside the United
States for law enforcement purposes, unless a judge of the
Foreign Intelligence Surveillance Court has entered an order
or the Attorney General has authorized an emergency
acquisition pursuant to subparagraphs (C) or (D) or any other
provision of this Act.
``(iii) Limitations.--

``(I) Moving or misidentified targets.--In the event that
the targeted United States person is reasonably believed to
be in the United States during the pendency of an order
issued pursuant to subparagraph (C), such acquisition shall
cease until authority is obtained pursuant to this Act or the
targeted United States person is again reasonably believed to
be located outside the United States during the pendency of
an order issued pursuant to subparagraph (C).
``(II) Applicability.--If the acquisition could be
authorized under paragraph (1), the procedures of paragraph
(1) shall apply, unless an order or emergency acquisition
authority has been obtained under a provision of this Act
other than under this section.

``(B) Application.--Each application for an order under
this paragraph shall be made by a Federal officer in writing
upon oath or affirmation to a judge having jurisdiction under
subparagraph (A)(i). Each application shall require the
approval of the Attorney General based upon the Attorney
General's finding that it satisfies the criteria and
requirements of such application as set forth in this section
and shall include--
``(i) the identity, if known, or a description of the
specific United States person who is the target of the
acquisition;
``(ii) a statement of the facts and circumstances relied
upon to justify the applicant's belief that the target of the
acquisition is--

``(I) a United States person reasonably believed to be
located outside the United States; and
``(II) a foreign power, an agent of a foreign power, or an
officer or employee of a foreign power who is reasonably
believed to have access to foreign intelligence information;

``(iii) a certification or certifications by the Assistant
to the President for National Security Affairs or an
executive branch official or officials designated by the
President from among those executive officers employed in the
area of national security or defense and appointed by the
President with the advice and consent of the Senate--

``(I) that the certifying official deems the information
sought to be foreign intelligence information; and
``(II) that a significant purpose of the acquisition is to
obtain foreign intelligence information;
``(III) that designates the type of foreign intelligence
information being sought according to the categories
described in section 101(e); and

[[Page S341]]

``(IV) including a statement of the basis for the
certification that the information sought is the type of
foreign intelligence information designated;

``(iv) a statement of the proposed minimization procedures
consistent with the requirements of section 101(h) or section
301(4);
``(v) a statement of the facts concerning any previous
applications that have been made to any judge of the Foreign
Intelligence Surveillance Court involving the United States
person specified in the application and the action taken on
each previous application; and
``(vi) a statement of the period of time for which the
acquisition is required to be maintained, provided that such
period of time shall not exceed 90 days per application.
``(C) Order.--
``(i) Findings.--If, upon an application made pursuant to
subparagraph (B), a judge having jurisdiction under
subparagraph (A)(i) finds that--

``(I) on the basis of the facts submitted by the applicant
there is probable cause to believe that the specified target
of the acquisition is--

``(aa) a person reasonably believed to be located outside
the United States; and
(bb) a foreign power, an agent of a foreign power, or an
officer or employee of a foreign power who is reasonably
believed to have access to foreign intelligence information;

``(II) the proposed minimization procedures, with respect
to their dissemination provisions, meet the definition of
minimization procedures under section 101(h) or section
301(4);
``(III) the certification or certifications required by
subparagraph (B) are not clearly erroneous on the basis of
the statement made under subparagraph (B)(iii)(IV),

the Court shall issue an ex parte order so stating.
``(ii) Probable cause.--In determining whether or not
probable cause exists for purposes of an order under clause
(i)(I), a judge having jurisdiction under subsection (A)(i)
may consider past activities of the target, as well as facts
and circumstances relating to current or future activities of
the target. However, no United States person may be
considered a foreign power, agent of a foreign power, or
officer or employee of a foreign power solely upon the basis
of activities protected by the first amendment to the
Constitution of the United States.
``(iii) Review.--

``(I) Limitations on review.--Review by a judge having
jurisdiction under subparagraph (A)(i) shall be limited to
that required to make the findings described in clause (i).
The judge shall not have jurisdiction to review the means by
which an acquisition under this section may be conducted.
``(II) Review of probable cause.--If the judge determines
that the facts submitted under subparagraph (B) are
insufficient to establish probable cause to issue an order
under this subsection, the judge shall enter an order so
stating and provide a written statement for the record of the
reasons for such determination. The Government may appeal an
order under this clause pursuant to subparagraph (E).
``(III) Review of minimization procedures.--If the judge
determines that the minimization procedures applicable to
dissemination of information obtained through an acquisition
under this subsection do not meet the definition of
minimization procedures under section 101(h) or section
301(4), the judge shall enter an order so stating and provide
a written statement for the record of the reasons for such
determination. The Government may appeal an order under this
clause pursuant to subparagraph (E).

``(iv) Duration.--An order under this paragraph shall be
effective for a period not to exceed 90 days and such order
may be renewed for additional 90-day periods upon submission
of renewal applications meeting the requirements of
subparagraph (B).
``(v) Compliance.--At, or prior to, the end of the period
of time for which an order or extension is approved under
this paragraph, the judge may assess compliance with the
minimization procedures by reviewing the circumstances under
which information concerning United States persons was
disseminated, provided that the judge may not inquire into
the circumstances relating to the conduct of the acquisition.
``(D) Emergency authorization.--
``(i) Authority for emergency authorization.--
Notwithstanding any other provision in this subsection, if
the Attorney General reasonably determines that--

``(I) an emergency situation exists with respect to the
acquisition of foreign intelligence information for which an
order may be obtained under subparagraph (C) before an order
under that subsection may, with due diligence, be obtained;
and
``(II) the factual basis for issuance of an order under
this section exists,

the Attorney General may authorize the emergency acquisition
if a judge having jurisdiction under subparagraph (A)(i) is
informed by the Attorney General or a designee of the
Attorney General at the time of such authorization that the
decision has been made to conduct such acquisition and if an
application in accordance with this subsection is made to a
judge of the Foreign Intelligence Surveillance Court as soon
as practicable, but not more than 168 hours after the
Attorney General authorizes such acquisition.
``(ii) Minimization procedures.--If the Attorney General
authorizes such emergency acquisition, the Attorney General
shall require that the minimization procedures required by
this subparagraph be followed.
``(iii) Termination of emergency authorization.--In the
absence of an order under subparagraph (C), the acquisition
shall terminate when the information sought is obtained, if
the application for the order is denied, or after the
expiration of 168 hours from the time of authorization by the
Attorney General, whichever is earliest.
``(iv) Use of information.--In the event that such
application is denied, or in any other case where the
acquisition is terminated and no order is issued approving
the acquisition, no information obtained or evidence derived
from such acquisition, except under circumstances in which
the target of the acquisition is determined not to be a
United States person during the pendency of the 168-hour
emergency acquisition period, shall be received in evidence
or otherwise disclosed in any trial, hearing, or other
proceeding in or before any court, grand jury, department,
office, agency, regulatory body, legislative committee, or
other authority of the United States, a State, or political
subdivision thereof, and no information concerning any United
States person acquired from such acquisition shall
subsequently be used or disclosed in any other manner by
Federal officers or employees without the consent of such
person, except with the approval of the Attorney General if
the information indicates a threat of death or serious bodily
harm to any person.
``(E) Appeal.--
``(i) Appeal to the court of review.--The Government may
file an appeal with the Foreign Intelligence Surveillance
Court of Review for review of an order issued pursuant to
subparagraph (C). The Court of Review shall have jurisdiction
to consider such appeal and shall provide a written statement
for the record of the reasons for a decision under this
paragraph.
``(ii) Certiorari to the supreme court.--The Government may
file a petition for a writ of certiorari for review of the
decision of the Court of Review issued under clause (i). 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.
``(F) Joint applications and orders.--If an acquisition
targeting a United States person under paragraph 1 or this
paragraph is proposed to be conducted both inside and outside
the United States, a judge having jurisdiction under
subparagraph (A) and section 103(a) may issue simultaneously,
upon the request of the Government in a joint application
complying with the requirements of subparagraph (B) and
section 104 or 303, orders authorizing the proposed
acquisition under subparagraph (B) and section 105 or 304, as
applicable.
``(G) Concurrent authorization.--If an order authorizing
electronic surveillance or physical search has been obtained
under section 105 or 304 and that order is in effect, the
Attorney General may authorize, during the pendency of such
order and without an order under this paragraph, an
acquisition under this paragraph of foreign intelligence
information targeting that United States person while such
person is reasonably believed to be located outside the
United States. Prior to issuing such an authorization, the
Attorney General shall submit dissemination provisions of
minimization procedures for such an acquisition to a judge
having jurisdiction under subparagraph (A) for approval.
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