S.Amdt. 3977

SA 3977. Mr. KENNEDY (for himself, Mr. Kerry, and Mr. Menendez)
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:

On page 6, line 13, strike ``and'' and all that follows
through page 10, line 5, and insert the following:
``(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; and
``(5) shall be conducted in a manner consistent with the
fourth amendment to the Constitution of the United States.
``(c) 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 (f);
and
``(2) the targeting and minimization procedures required
pursuant to subsections (d) and (e).
``(d) 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 (h).
``(e) 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) or section 301(4), minimization procedures for
acquisitions authorized under subsection (a).
``(2) Judicial review.--The minimization procedures
required by this subsection shall be subject to judicial
review pursuant to subsection (h).
``(f) 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 that such procedures have been
approved by, or will be submitted in not more than 5 days for
approval by, the Foreign Intelligence Surveillance Court
pursuant to subsection (h);
``(ii) there are reasonable procedures in place for
determining that the acquisition authorized under subsection
(a) 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 be submitted in not more than 5
days for approval by, the Foreign Intelligence Surveillance
Court pursuant to subsection (h);
``(iii) the procedures referred to in clauses (i) and (ii)
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 the
intentional acquisition of any communication

[[Page S554]]

as to which the sender and all intended recipients are known
at the time of acquisition to be located in the United
States;
``(iv) a significant purpose of the acquisition is to
obtain foreign intelligence information;
``(v) the minimization procedures to be used with respect
to such acquisition--

``(I) meet the definition of minimization procedures under
section 101(h) or section 301(4); and
``(II) have been approved by, or will be submitted in not
more than 5 days for approval by, the Foreign Intelligence
Surveillance Court pursuant to subsection (h);

``(vi) the acquisition involves obtaining the foreign
intelligence information from or with the assistance of an
electronic communication service provider; and
``(vii) the acquisition does not constitute electronic
surveillance, as limited by section 701; and

On page 17, line 2, strike ``States.'' and insert ``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.''
______