To provide safeguards for communications involving persons inside the United States.

SA 3979. Mr. FEINGOLD (for himself, Mr. Webb, Mr. Tester, Mr. Biden,
Mr. Sanders, Mr. Kennedy, Mr. Menendez, Mr. Akaka, Mr. Dodd, and Mr.
Obama) proposed an amendment 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; as
follows:

On page 52, line 2, strike the quotation marks and the
second period and insert the following:

``SEC. 709. ADDITIONAL SAFEGUARDS FOR COMMUNICATIONS OF
PERSONS INSIDE THE UNITED STATES.

``(a) Limitations on Acquisition of Communications.--
``(1) Limitation.--Except as authorized under title I or
paragraph (2), no communication shall be acquired under this
title if the Government knows before or at the time of
acquisition that the communication is to or from a person
reasonably believed to be located in the United States.
``(2) Exception.--
``(A) In general.--In addition to any authority under
title I to acquire communications described in paragraph (1),
such communications may be acquired if--
``(i) there is reason to believe that the communication
concerns international terrorist activities directed against
the United States, or activities in preparation therefor;
``(ii) there is probable cause to believe that the target
reasonably believed to be located outside the United States
is an agent of a foreign power and such foreign power is a
group engaged in international terrorism or activities in
preparation therefor; or
``(iii) there is reason to believe that the acquisition
is necessary to prevent death or serious bodily harm.
``(B) Access to communications.--Communications acquired
under this paragraph shall be treated in accordance with
subsection (b).
``(3) Procedures for determinations before or at the time
of acquisition.--
``(A) Submission.--Not later than 120 days after the date
of enactment of the FISA Amendments Act of 2008, the Attorney
General, in consultation with the Director of National
Intelligence, shall submit to the Foreign Intelligence
Surveillance Court for approval procedures for determining
before or at the time of acquisition, where reasonably
practicable, whether a communication is to or from a person
reasonably believed to be located in the United States and
whether the exception under paragraph (2) applies to that
communication.
``(B) Review.--The Foreign Intelligence Surveillance
Court shall approve the procedures submitted under
subparagraph (A) if the procedures are reasonably designed to
determine before or at the time of acquisition, where
reasonably practicable, whether a communication is to or from
a person reasonably believed to be located in the United
States and whether the exception under paragraph (2) applies
to that communication.
``(C)  Procedures do not meet requirements.--If the
Foreign Intelligence Surveillance Court concludes that the
procedures submitted under subparagraph (A) do not meet the
requirements of subparagraph (B),

[[Page S608]]

the Court 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
subparagraph to the Foreign Intelligence Surveillance Court
of Review.
``(D) Use of procedures.--If the Foreign Intelligence
Surveillance Court approves procedures under this paragraph,
the Government shall use such procedures in any acquisition
of communications under this title.
``(E) Revisions.--The Attorney General, in consultation
with the Director of National Intelligence, may submit new or
amended procedures to the Foreign Intelligence Surveillance
Court for review under this paragraph.
``(F) Reliability.--If the Government obtains new
information relating to the reliability of procedures
approved under this paragraph or the availability of more
reliable procedures, the Attorney General shall submit to the
Foreign Intelligence Surveillance Court such information.
``(b) Limitations on Access to Communications.--
``(1) In general.--At such time as the Government can
reasonably determine that a communication acquired under this
title (including a communication acquired under subsection
(a)(2)) is to or from a person reasonably believed to be
located in the United States, such communication shall be
segregated or specifically designated and no person shall
access such a communication, except in accordance with title
I or this section.
``(2) Exceptions.--In addition to any authority under
title I, including the emergency provision in section 105(f),
a communication described in paragraph (1) may be accessed
and disseminated for a period of not longer than 7 days if--
``(A)(i) there is reason to believe that the
communication concerns international terrorist activities
directed against the United States, or activities in
preparation therefor;
``(ii) there is probable cause to believe that the target
reasonably believed to be located outside the United States
is an agent of a foreign power and such foreign power is a
group engaged in international terrorism or activities in
preparation therefor; or
``(iii) there is reason to believe that the access is
necessary to prevent death or serious bodily harm;
``(B) the Attorney General notifies the Foreign
Intelligence Surveillance Court immediately of such access;
and
``(C) not later than 7 days after the date such access is
initiated, the Attorney General--
``(i) makes an application for an order under title I; or
``(ii) submits to the Foreign Intelligence Surveillance
Court a document that--

``(I) certifies that--

``(aa) there is reason to believe that the communication
concerns international terrorist activities directed against
the United States, or activities in preparation therefor;
``(bb) there is probable cause to believe that the target
reasonably believed to be located outside the United States
is an agent of a foreign power and such foreign power is a
group engaged in international terrorism or activities in
preparation therefor; or
``(cc) there is reason to believe that the access is
necessary to prevent death or serious bodily harm; and

``(II) identifies the target of the collection, the party
to the communication who is inside the United States if
known, and the extent to which information relating to the
communication has been disseminated.

``(3) Denial of court order.--If an application for a
court order described in paragraph (2)(C)(i) is made and is
not approved, the Attorney General shall submit to the court,
not later than 7 days after the date of the denial of the
application, the document described in paragraph (2)(C)(ii).
``(4) Additional court authorities.--
``(A) In general.--The Foreign Intelligence Surveillance
Court may--
``(i) limit access to communications described in
paragraph (1) relating to a particular target if the Court
determines that any certification submitted under paragraph
(2)(C)(ii)(I) with respect to that target is clearly
erroneous; and
``(ii) require the Attorney General to provide the
factual basis for a certification submitted under paragraph
(2)(C)(ii)(I), if the Court determines it would aid the Court
in conducting review under this subsection.
``(B) FISC access.--The Foreign Intelligence Surveillance
Court shall have access to any communications that have been
segregated or specifically designated under paragraph (1) and
any information the use of which has been limited under
paragraph (5).
``(5) Failure to notify.--
``(A) In general.--In the circumstances described in
subparagraph (B), access to a communication shall terminate,
and no information obtained or evidence derived from such
access concerning any United States person 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 access
shall subsequently be used or disclosed in any 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, or if a court order is obtained under
title I.
``(B) Circumstances.--The circumstances described in this
subparagraph are circumstances in which--
``(i) as of the date that is 7 days after the date on
which access to a communication is initiated under paragraph
(2), a court order described in paragraph (2)(C)(i) has not
been sought and the document described in paragraph
(2)(C)(ii) has not been submitted; or
``(ii) as of the date that is 7 days after an application
for a court order described in paragraph (2)(C)(i) is denied,
the document described in paragraph (2)(C)(ii) is not
submitted in accordance with paragraph (3).
``(6) Evidence of a crime.--Information or communications
subject to this subsection may be disseminated for law
enforcement purposes if it is evidence that a crime has been,
is being, or is about to be committed, provided that
dissemination is made in accordance with section 106(b).
``(7) Procedures for determinations after acquisition.--
``(A) In general.--Not later than 120 days after the date
of enactment of the FISA Amendments Act of 2008, the Attorney
General, in consultation with the Director of National
Intelligence, shall submit to the Foreign Intelligence
Surveillance Court for approval procedures for determining,
where reasonably practicable, whether a communication
acquired under this title is to or from a person reasonably
believed to be inside the United States.
``(B) Review.--The Foreign Intelligence Surveillance
Court shall approve the procedures submitted under
subparagraph (A) if the procedures are reasonably designed to
determine, where reasonably practicable, whether a
communication acquired under this title is a communication to
or from a person reasonably believed to be located in the
United States.
``(C)  Procedures do not meet requirements.--If the
Foreign Intelligence Surveillance Court concludes that the
procedures submitted under subparagraph (A) do not meet the
requirements of subparagraph (B), the Court 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 subparagraph to the Foreign
Intelligence Surveillance Court of Review.
``(D) Use of procedures.--If the Foreign Intelligence
Surveillance Court approves procedures under this paragraph,
the Government shall use such procedures for any
communication acquired under this title.
``(E) Revisions.--The Attorney General, in consultation
with the Director of National Intelligence, may submit new or
amended procedures to the Foreign Intelligence Surveillance
Court for review under this paragraph.
``(F) Reliability.--If the Government obtains new
information relating to the reliability of procedures
approved under this paragraph or the availability of more
reliable procedures, the Attorney General shall submit to the
Foreign Intelligence Surveillance Court such information.
``(c) Title I Court Order.--If the Government obtains a
court order under title I relating to a target of an
acquisition under this title, the Government may access and
disseminate, under the terms of that court order and any
applicable minimization requirements, any communications of
that target that have been acquired and segregated or
specifically designated under subsection (b)(1).
``(d) Inspector General Audit.--
``(1) Audit.--Not less than once each year, the Inspector
General of the Department of Defense and the Inspector
General of the Department of Justice shall complete an audit
of the implementation of and compliance with this section.
For purposes of such audit, the Inspectors General shall have
access to any communications that have been segregated or
specifically designated under subsection (b)(1) and any
information the use of which has been limited under
subsection (b)(5). Such audit shall include an accounting of
such segregated or specifically designated communications
that have been disseminated.
``(2) Report.--Not later than 30 days after the
completion of each audit under paragraph (1), the Inspectors
General shall jointly submit to the Permanent Select
Committee on Intelligence and the Committee on the Judiciary
of the House of Representatives and the Select Committee on
Intelligence and the Committee on the Judiciary of the Senate
a report containing the results of the audit.
``(3) Expedited security clearance.--The Director of
National Intelligence shall ensure that the process for the
investigation and adjudication of an application by an
Inspector General or any appropriate staff of an Inspector
General for a security clearance necessary for the conduct of
the audits under this subsection is conducted as
expeditiously as possible.
``(e) Applicability.--Subsections (a) and (b) shall apply
to any communication acquired under this title on or after
the earlier of--
``(1) the date that the Foreign Intelligence Surveillance
Court approves the procedures described in subsection (a)(3)
and the procedures described in subsection (b)(7); and
``(2) 1 year after the date of enactment of the FISA
Amendments Act of 2008.''.

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