Thread: House Caves, Approves Fake 'Compromise' on Telecom Immunity

Electronic Frontier Foundation Media Release

http://www.eff.org/press/archives/2008/06/20

For Immediate Release: Friday, June 20, 2008

House Caves, Approves Fake 'Compromise' on Telecom Immunity

EFF Condemns House Vote, Looks to Senate for Leadership

Washington, D.C. - Privacy rights and the rule of law took a serious blow today when the House of Representatives passed blanket retroactive immunity for phone companies that participated in the president's warrantless surveillance program. The FISA Amendments Act, H.R. 6304 [below], which House Leadership rushed to the floor today after its introduction yesterday, passed by a vote of 293 to 129. The Senate is expected to vote on the bill next week.

The bill was touted as a bipartisan "compromise" on the issues of electronic surveillance and immunity. But in fact it requires dismissal of lawsuits against companies like AT&T that participated in the program as long as the companies received a piece of paper from the government indicating that the surveillance had been authorized by the president and was determined to be lawful.

"Immunity for telecom giants that secretly assisted in the NSA's warrantless surveillance undermines the rule of law and the privacy of every American," said EFF Senior Staff Attorney Kevin Bankston. "Congress should let the courts do their job instead of helping the administration and the phone companies avoid accountability for a half decade of illegal domestic spying. If this legislation passes the Senate and is signed into law, the American people will have lost their last best chance to discover the true scope of the president's wiretapping program and to determine whether or not the law was broken."

Contact:

Kevin Bankston
Senior Staff Attorney
Electronic Frontier Foundation
bankston[at]eff.org
+1 415 436-9333 x126

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press[at]eff.org
+1 415 436-9333 x125

[110th CONGRESS House Bills]

[From the U.S. Government Printing Office via GPO Access]
[DOCID: h6304ih.txt]
[Introduced in House]






110th CONGRESS
2d Session
H. R. 6304

To amend the Foreign Intelligence Surveillance Act of 1978 to establish
a procedure for authorizing certain acquisitions of foreign
intelligence, and for other purposes.


__________________________________________________ _____________________


IN THE HOUSE OF REPRESENTATIVES

June 19, 2008

Mr. Reyes (for himself, Mr. Hoekstra, and Mr. Smith of Texas)
introduced the following bill; which was referred to the Committee on
the Judiciary, and in addition to the Select Committee on Intelligence
(Permanent Select), for a period to be subsequently determined by the
Speaker, in each case for consideration of such provisions as fall
within the jurisdiction of the committee concerned

__________________________________________________ _____________________

A BILL



To amend the Foreign Intelligence Surveillance Act of 1978 to establish
a procedure for authorizing certain acquisitions of foreign
intelligence, and for other purposes.

Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) Short Title.--This Act may be cited as the ``Foreign
Intelligence Surveillance Act of 1978 Amendments Act of 2008'' or the
``FISA Amendments Act of 2008''.
(b) Table of Contents.--The table of contents for this Act is as
follows:

Sec. 1. Short title; table of contents.
TITLE I--FOREIGN INTELLIGENCE SURVEILLANCE

Sec. 101. Additional procedures regarding certain persons outside the
United States.
Sec. 102. Statement of exclusive means by which electronic surveillance
and interception of certain communications
may be conducted.
Sec. 103. Submittal to Congress of certain court orders under the
Foreign Intelligence Surveillance Act of
1978.
Sec. 104. Applications for court orders.
Sec. 105. Issuance of an order.
Sec. 106. Use of information.
Sec. 107. Amendments for physical searches.
Sec. 108. Amendments for emergency pen registers and trap and trace
devices.
Sec. 109. Foreign Intelligence Surveillance Court.
Sec. 110. Weapons of mass destruction.
TITLE II--PROTECTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS

Sec. 201. Procedures for implementing statutory defenses under the
Foreign Intelligence Surveillance Act of
1978.
Sec. 202. Technical amendments.
TITLE III--REVIEW OF PREVIOUS ACTIONS

Sec. 301. Review of previous actions.
TITLE IV--OTHER PROVISIONS

Sec. 401. Severability.
Sec. 402. Effective date.
Sec. 403. Repeals.
Sec. 404. Transition procedures.

TITLE I--FOREIGN INTELLIGENCE SURVEILLANCE

SEC. 101. ADDITIONAL PROCEDURES REGARDING CERTAIN PERSONS OUTSIDE THE
UNITED STATES.

(a) In General.--The Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et seq.) is amended--
(1) by striking title VII; and
(2) by adding at the end the following:

``TITLE VII--ADDITIONAL PROCEDURES REGARDING CERTAIN PERSONS OUTSIDE
THE UNITED STATES

``SEC. 701. DEFINITIONS.

``(a) In General.--The terms `agent of a foreign power', `Attorney
General', `contents', `electronic surveillance', `foreign intelligence
information', `foreign power', `person', `United States', and `United
States person' have the meanings given such terms in section 101,
except as specifically provided in this title.
``(b) Additional Definitions.--
``(1) Congressional intelligence committees.--The term
`congressional intelligence committees' means--
``(A) the Select Committee on Intelligence of the
Senate; and
``(B) the Permanent Select Committee on
Intelligence of the House of Representatives.
``(2) Foreign intelligence surveillance court; court.--The
terms `Foreign Intelligence Surveillance Court' and `Court'
mean the court established under section 103(a).
``(3) Foreign intelligence surveillance court of review;
court of review.--The terms `Foreign Intelligence Surveillance
Court of Review' and `Court of Review' mean the court
established under section 103(b).
``(4) Electronic communication service provider.--The term
`electronic communication service provider' means--
``(A) a telecommunications carrier, as that term is
defined in section 3 of the Communications Act of 1934
(47 U.S.C. 153);
``(B) a provider of electronic communication
service, as that term is defined in section 2510 of
title 18, United States Code;
``(C) a provider of a remote computing service, as
that term is defined in section 2711 of title 18,
United States Code;
``(D) any other communication service provider who
has access to wire or electronic communications either
as such communications are transmitted or as such
communications are stored; or
``(E) an officer, employee, or agent of an entity
described in subparagraph (A), (B), (C), or (D).
``(5) Intelligence community.--The term `intelligence
community' has the meaning given the term in section 3(4) of
the National Security Act of 1947 (50 U.S.C. 401a(4)).

``SEC. 702. PROCEDURES FOR TARGETING CERTAIN PERSONS OUTSIDE THE UNITED
STATES OTHER THAN UNITED STATES PERSONS.

``(a) Authorization.--Notwithstanding any other provision of law,
upon the issuance of an order in accordance with subsection (i)(3) or a
determination under subsection (c)(2), the Attorney General and the
Director of National Intelligence may authorize jointly, for a period
of up to 1 year from the effective date of the authorization, the
targeting of persons reasonably believed to be located outside the
United States to acquire foreign intelligence information.
``(b) Limitations.--An acquisition authorized under subsection
(a)--
``(1) may not intentionally target any person known at the
time of acquisition to be located in the United States;
``(2) may not intentionally target a person reasonably
believed to be located outside the United States if the purpose
of such acquisition is to target a particular, known person
reasonably believed to be in the United States;
``(3) may not intentionally target a United States person
reasonably believed to be located outside the United States;
``(4) may 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.--
``(1) In general.--An acquisition authorized under
subsection (a) shall be conducted only in accordance with--
``(A) the targeting and minimization procedures
adopted in accordance with subsections (d) and (e); and
``(B) upon submission of a certification in
accordance with subsection (g), such certification.
``(2) Determination.--A determination under this paragraph
and for purposes of subsection (a) is a determination by the
Attorney General and the Director of National Intelligence that
exigent circumstances exist because, without immediate
implementation of an authorization under subsection (a),
intelligence important to the national security of the United
States may be lost or not timely acquired and time does not
permit the issuance of an order pursuant to subsection (i)(3)
prior to the implementation of such authorization.
``(3) Timing of determination.--The Attorney General and
the Director of National Intelligence may make the
determination under paragraph (2)--
``(A) before the submission of a certification in
accordance with subsection (g); or
``(B) by amending a certification pursuant to
subsection (i)(1)(C) at any time during which judicial
review under subsection (i) of such certification is
pending.
``(4) Construction.--Nothing in title I shall be construed
to require an application for a court order under such title
for an acquisition that is targeted in accordance with this
section at a person reasonably believed to be located outside
the United States.
``(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--
``(A) ensure that any acquisition authorized under
subsection (a) is limited to targeting persons
reasonably believed to be located outside the United
States; and
``(B) prevent 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 adopted in
accordance with paragraph (1) shall be subject to judicial
review pursuant to subsection (i).
``(e) Minimization Procedures.--
``(1) Requirement to adopt.--The Attorney General, in
consultation with the Director of National Intelligence, shall
adopt minimization procedures that meet the definition of
minimization procedures under section 101(h) or 301(4), as
appropriate, for acquisitions authorized under subsection (a).
``(2) Judicial review.--The minimization procedures adopted
in accordance with paragraph (1) shall be subject to judicial
review pursuant to subsection (i).
``(f) Guidelines for Compliance With Limitations.--
``(1) Requirement to adopt.--The Attorney General, in
consultation with the Director of National Intelligence, shall
adopt guidelines to ensure--
``(A) compliance with the limitations in subsection
(b); and
``(B) that an application for a court order is
filed as required by this Act.
``(2) Submission of guidelines.--The Attorney General shall
provide the guidelines adopted in accordance with paragraph (1)
to--
``(A) the congressional intelligence committees;
``(B) the Committees on the Judiciary of the Senate
and the House of Representatives; and
``(C) the Foreign Intelligence Surveillance Court.
``(g) Certification.--
``(1) In general.--
``(A) Requirement.--Subject to subparagraph (B),
prior to the implementation of an authorization under
subsection (a), the Attorney General and the Director
of National Intelligence shall provide to the Foreign
Intelligence Surveillance Court a written certification
and any supporting affidavit, under oath and under
seal, in accordance with this subsection.
``(B) Exception.--If the Attorney General and the
Director of National Intelligence make a determination
under subsection (c)(2) and time does not permit the
submission of a certification under this subsection
prior to the implementation of an authorization under
subsection (a), the Attorney General and the Director
of National Intelligence shall submit to the Court a
certification for such authorization as soon as
practicable but in no event later than 7 days after
such determination is made.
``(2) Requirements.--A certification made under this
subsection shall--
``(A) attest that--
``(i) there are procedures in place that
have been approved, have been submitted for
approval, or will be submitted with the
certification for approval by the Foreign
Intelligence Surveillance Court that are
reasonably designed to--
``(I) ensure that an acquisition
authorized under subsection (a) is
limited to targeting persons reasonably
believed to be located outside the
United States; and
``(II) prevent 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;
``(ii) the minimization procedures to be
used with respect to such acquisition--
``(I) meet the definition of
minimization procedures under section
101(h) or 301(4), as appropriate; and
``(II) have been approved, have
been submitted for approval, or will be
submitted with the certification for
approval by the Foreign Intelligence
Surveillance Court;
``(iii) guidelines have been adopted in
accordance with subsection (f) to ensure
compliance with the limitations in subsection
(b) and to ensure that an application for a
court order is filed as required by this Act;
``(iv) the procedures and guidelines
referred to in clauses (i), (ii), and (iii) are
consistent with the requirements of the fourth
amendment to the Constitution of the United
States;
``(v) a significant purpose of the
acquisition is to obtain foreign intelligence
information;
``(vi) the acquisition involves obtaining
foreign intelligence information from or with
the assistance of an electronic communication
service provider; and
``(vii) the acquisition complies with the
limitations in subsection (b);
``(B) include the procedures adopted in accordance
with subsections (d) and (e);
``(C) 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 advice and consent of the Senate; or
``(ii) the head of an element of the
intelligence community;
``(D) include--
``(i) an effective date for the
authorization that is at least 30 days after
the submission of the written certification to
the court; or
``(ii) if the acquisition has begun or the
effective date is less than 30 days after the
submission of the written certification to the
court, the date the acquisition began or the
effective date for the acquisition; and
``(E) if the Attorney General and the Director of
National Intelligence make a determination under
subsection (c)(2), include a statement that such
determination has been made.
``(3) Change in effective date.--The Attorney General and
the Director of National Intelligence may advance or delay the
effective date referred to in paragraph (2)(D) by submitting an
amended certification in accordance with subsection (i)(1)(C)
to the Foreign Intelligence Surveillance Court for review
pursuant to subsection (i).
``(4) Limitation.--A certification made under this
subsection is not required to identify the specific facilities,
places, premises, or property at which an acquisition
authorized under subsection (a) will be directed or conducted.
``(5) Maintenance of certification.--The Attorney General
or a designee of the Attorney General shall maintain a copy of
a certification made under this subsection.
``(6) Review.--A certification submitted in accordance with
this subsection shall be subject to judicial review pursuant to
subsection (i).
``(h) Directives and Judicial Review of 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 of the acquisition; 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
in accordance with a directive issued pursuant to paragraph
(1).
``(3) Release from liability.--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 file a petition to
modify or set aside such directive with the Foreign
Intelligence Surveillance Court, which shall have
jurisdiction to review such petition.
``(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 under
section 103(e)(1) not later than 24 hours after the
filing of such petition.
``(C) Standards for review.--A judge considering a
petition filed under subparagraph (A) may grant such
petition only if the judge finds that the directive
does not meet the requirements of this section, or is
otherwise unlawful.
``(D) Procedures for initial review.--A judge shall
conduct an initial review of a petition filed under
subparagraph (A) not later than 5 days after being
assigned such petition. If the judge determines that
such petition does not consist of claims, defenses, or
other legal contentions that are warranted by existing
law or by a nonfrivolous argument for extending,
modifying, or reversing existing law or for
establishing new law, the judge shall immediately deny
such petition and affirm the directive or any part of
the directive that is the subject of such petition and
order the recipient to comply with the directive or any
part of it. Upon making a determination under this
subparagraph or promptly thereafter, the judge shall
provide a written statement for the record of the
reasons for such determination.
``(E) Procedures for plenary review.--If a judge
determines that a petition filed under subparagraph (A)
requires plenary review, the judge shall affirm,
modify, or set aside the directive that is the subject
of such petition not later than 30 days after being
assigned such petition. If the judge does not set aside
the directive, the judge shall immediately affirm or
affirm with modifications the directive, and order the
recipient to comply with the directive in its entirety
or as modified. The judge shall provide a written
statement for the record of the reasons for a
determination under this subparagraph.
``(F) Continued effect.--Any directive not
explicitly modified or set aside under this paragraph
shall remain in full effect.
``(G) Contempt of court.--Failure to obey an order
issued under this paragraph may be punished by the
Court as contempt of court.
``(5) Enforcement of directives.--
``(A) Order to compel.--If an electronic
communication service provider fails to comply with a
directive issued pursuant to paragraph (1), the
Attorney General may file a petition for an order to
compel the electronic communication service provider to
comply with the directive with the Foreign Intelligence
Surveillance Court, which shall have jurisdiction to
review such petition.
``(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 under
section 103(e)(1) not later than 24 hours after the
filing of such petition.
``(C) Procedures for review.--A judge considering a
petition filed under subparagraph (A) shall, not later
than 30 days after being assigned such petition, issue
an order requiring the electronic communication service
provider to comply with the directive or any part of
it, as issued or as modified, if the judge finds that
the directive 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
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
a decision issued pursuant to paragraph (4) or (5). The
Court of Review shall have jurisdiction to consider
such petition and shall provide a written statement for
the record of the reasons for a decision under this
subparagraph.
``(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 a 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 of Certifications and Procedures.--
``(1) In general.--
``(A) Review by the foreign intelligence
surveillance court.--The Foreign Intelligence
Surveillance Court shall have jurisdiction to review a
certification submitted in accordance with subsection
(g) and the targeting and minimization procedures
adopted in accordance with subsections (d) and (e), and
amendments to such certification or such procedures.
``(B) Time period for review.--The Court shall
review a certification submitted in accordance with
subsection (g) and the targeting and minimization
procedures adopted in accordance with subsections (d)
and (e) and shall complete such review and issue an
order under paragraph (3) not later than 30 days after
the date on which such certification and such
procedures are submitted.
``(C) Amendments.--The Attorney General and the
Director of National Intelligence may amend a
certification submitted in accordance with subsection
(g) or the targeting and minimization procedures
adopted in accordance with subsections (d) and (e) as
necessary at any time, including if the Court is
conducting or has completed review of such
certification or such procedures, and shall submit the
amended certification or amended procedures to the
Court not later than 7 days after amending such
certification or such procedures. The Court shall
review any amendment under this subparagraph under the
procedures set forth in this subsection. The Attorney
General and the Director of National Intelligence may
authorize the use of an amended certification or
amended procedures pending the Court's review of such
amended certification or amended procedures.
``(2) Review.--The Court shall review the following:
``(A) Certification.--A certification submitted in
accordance with subsection (g) to determine whether the
certification contains all the required elements.
``(B) Targeting procedures.--The targeting
procedures adopted in accordance with subsection (d) to
assess whether the procedures are reasonably designed
to--
``(i) ensure that an acquisition authorized
under subsection (a) is limited to targeting
persons reasonably believed to be located
outside the United States; and
``(ii) prevent 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.
``(C) Minimization procedures.--The minimization
procedures adopted in accordance with subsection (e) to
assess whether such procedures meet the definition of
minimization procedures under section 101(h) or section
301(4), as appropriate.
``(3) Orders.--
``(A) Approval.--If the Court finds that a
certification submitted in accordance with subsection
(g) contains all the required elements and that the
targeting and minimization procedures adopted in
accordance with subsections (d) and (e) are consistent
with the requirements of those subsections and with the
fourth amendment to the Constitution of the United
States, the Court shall enter an order approving the
certification and the use, or continued use in the case
of an acquisition authorized pursuant to a
determination under subsection (c)(2), of the
procedures for the acquisition.
``(B) Correction of deficiencies.--If the Court
finds that a certification submitted in accordance with
subsection (g) does not contain all the required
elements, or that the procedures adopted in accordance
with subsections (d) and (e) are not consistent with
the requirements of those subsections or the fourth
amendment to the Constitution of the United States, the
Court shall issue an order directing the Government to,
at the Government's election and to the extent required
by the Court's order--
``(i) correct any deficiency identified by
the Court's order not later than 30 days after
the date on which the Court issues the order;
or
``(ii) cease, or not begin, the
implementation of the authorization for which
such certification was submitted.
``(C) Requirement for written statement.--In
support of an order under this subsection, the Court
shall provide, simultaneously with the order, for the
record a written statement of the reasons for the
order.
``(4) Appeal.--
``(A) Appeal to the court of review.--The
Government may file a petition with the Foreign
Intelligence Surveillance Court of Review for review of
an order under this subsection. The Court of Review
shall have jurisdiction to consider such petition. For
any decision under this subparagraph affirming,
reversing, or modifying an order of the Foreign
Intelligence Surveillance Court, the Court of Review
shall provide for the record a written statement of the
reasons for the decision.
``(B) Continuation of acquisition pending rehearing
or appeal.--Any acquisition affected by an order under
paragraph (3)(B) may continue--
``(i) during the pendency of any rehearing
of the order by the Court en banc; and
``(ii) if the Government files a petition
for review of an order under this section,
until the Court of Review enters an order under
subparagraph (C).
``(C) Implementation pending appeal.--Not later
than 60 days after the filing of a petition for review
of an order under paragraph (3)(B) directing the
correction of a deficiency, the Court of Review shall
determine, and enter a corresponding order regarding,
whether all or any part of the correction order, as
issued or modified, shall be implemented during the
pendency of the review.
``(D) Certiorari to the supreme court.--The
Government may file a petition for a writ of certiorari
for review of a 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.
``(5) Schedule.--
``(A) Reauthorization of authorizations in
effect.--If the Attorney General and the Director of
National Intelligence seek to reauthorize or replace an
authorization issued under subsection (a), the Attorney
General and the Director of National Intelligence
shall, to the extent practicable, submit to the Court
the certification prepared in accordance with
subsection (g) and the procedures adopted in accordance
with subsections (d) and (e) at least 30 days prior to
the expiration of such authorization.
``(B) Reauthorization of orders, authorizations,
and directives.--If the Attorney General and the
Director of National Intelligence seek to reauthorize
or replace an authorization issued under subsection (a)
by filing a certification pursuant to subparagraph (A),
that authorization, and any directives issued
thereunder and any order related thereto, shall remain
in effect, notwithstanding the expiration provided for
in subsection (a), until the Court issues an order with
respect to such certification under paragraph (3) at
which time the provisions of that paragraph and
paragraph (4) shall apply with respect to such
certification.
``(j) Judicial Proceedings.--
``(1) Expedited judicial proceedings.--Judicial proceedings
under this section shall be conducted as expeditiously as
possible.
``(2) Time limits.--A time limit for a judicial decision in
this section shall apply unless the Court, the Court of Review,
or any judge of either the Court or the Court of Review, by
order for reasons stated, extends that time as necessary for
good cause in a manner consistent with national security.
``(k) Maintenance and Security of Records and Proceedings.--
``(1) Standards.--The Foreign Intelligence Surveillance
Court shall maintain a record of a proceeding under this
section, including petitions, appeals, orders, and statements
of reasons for a decision, under security measures adopted by
the Chief Justice of the United States, in consultation with
the Attorney General and the Director of National Intelligence.
``(2) Filing and review.--All petitions under this section
shall be filed under seal. In any proceedings under this
section, the Court shall, upon request of the Government,
review ex parte and in camera any Government submission, or
portions of a submission, which may include classified
information.
``(3) Retention of records.--The Attorney General and the
Director of National Intelligence shall retain a directive or
an order issued under this section for a period of not less
than 10 years from the date on which such directive or such
order is issued.
``(l) Assessments and Reviews.--
``(1) Semiannual assessment.--Not less frequently than once
every 6 months, the Attorney General and Director of National
Intelligence shall assess compliance with the targeting and
minimization procedures adopted in accordance with subsections
(d) and (e) and the guidelines adopted in accordance with
subsection (f) and shall submit each assessment to--
``(A) the Foreign Intelligence Surveillance Court;
and
``(B) consistent with the Rules of the House of
Representatives, the Standing Rules of the Senate, and
Senate Resolution 400 of the 94th Congress or any
successor Senate resolution--
``(i) the congressional intelligence
committees; and
``(ii) the Committees on the Judiciary of
the House of Representatives and the Senate.
``(2) Agency assessment.--The Inspector General of the
Department of Justice and the Inspector General of each element
of the intelligence community authorized to acquire foreign
intelligence information under subsection (a), with respect to
the department or element of such Inspector General--
``(A) are authorized to review compliance with the
targeting and minimization procedures adopted in
accordance with subsections (d) and (e) and the
guidelines adopted in accordance with subsection (f);
``(B) with respect to acquisitions authorized under
subsection (a), shall review the number of disseminated
intelligence reports containing a reference to a United
States-person identity and the number of United States-
person identities subsequently disseminated by the
element concerned in response to requests for
identities that were not referred to by name or title
in the original reporting;
``(C) with respect to acquisitions authorized under
subsection (a), shall review the number of targets that
were later determined to be located in the United
States and, to the extent possible, whether
communications of such targets were reviewed; and
``(D) shall provide each such review to--
``(i) the Attorney General;
``(ii) the Director of National
Intelligence; and
``(iii) consistent with the Rules of the
House of Representatives, the Standing Rules of
the Senate, and Senate Resolution 400 of the
94th Congress or any successor Senate
resolution--
``(I) the congressional
intelligence committees; and
``(II) the Committees on the
Judiciary of the House of
Representatives and the Senate.
``(3) Annual review.--
``(A) Requirement to conduct.--The head of each
element of the intelligence community conducting an
acquisition authorized under subsection (a) shall
conduct an annual review to determine whether there is
reason to believe that foreign intelligence information
has been or will be obtained from the acquisition. The
annual review shall provide, with respect to
acquisitions authorized under subsection (a)--
``(i) an accounting of the number of
disseminated intelligence reports containing a
reference to a United States-person identity;
``(ii) an accounting of the number of
United States-person identities subsequently
disseminated by that element in response to
requests for identities that were not referred
to by name or title in the original reporting;
``(iii) the number of targets that were
later determined to be located in the United
States and, to the extent possible, whether
communications of such targets were reviewed;
and
``(iv) a description of any procedures
developed by the head of such element of the
intelligence community and approved by the
Director of National Intelligence to assess, in
a manner consistent with national security,
operational requirements and the privacy
interests of United States persons, the extent
to which the acquisitions authorized under
subsection (a) acquire the communications of
United States persons, and the results of any
such assessment.
``(B) Use of review.--The head of each element of
the intelligence community that conducts an annual
review under subparagraph (A) shall use each such
review to evaluate the adequacy of the minimization
procedures utilized by such element and, as
appropriate, the application of the minimization
procedures to a particular acquisition authorized under
subsection (a).
``(C) Provision of review.--The head of each
element of the intelligence community that conducts an
annual review under subparagraph (A) shall provide such
review to--
``(i) the Foreign Intelligence Surveillance
Court;
``(ii) the Attorney General;
``(iii) the Director of National
Intelligence; and
``(iv) consistent with the Rules of the
House of Representatives, the Standing Rules of
the Senate, and Senate Resolution 400 of the
94th Congress or any successor Senate
resolution--
``(I) the congressional
intelligence committees; and
``(II) the Committees on the
Judiciary of the House of
Representatives and the Senate.

``SEC. 703. CERTAIN ACQUISITIONS INSIDE THE UNITED STATES TARGETING
UNITED STATES PERSONS OUTSIDE THE UNITED STATES.

``(a) Jurisdiction of the Foreign Intelligence Surveillance
Court.--
``(1) In general.--The Foreign Intelligence Surveillance
Court shall have jurisdiction to review an application and to
enter an order approving the targeting of a United States
person reasonably believed to be located outside the United
States to acquire foreign intelligence information, if the
acquisition constitutes electronic surveillance or the
acquisition of stored electronic communications or stored
electronic data that requires an order under this Act, and such
acquisition is conducted within the United States.
``(2) Limitation.--If a United States person targeted under
this subsection is reasonably believed to be located in the
United States during the effective period of an order issued
pursuant to subsection (c), an acquisition targeting such
United States person under this section shall cease unless the
targeted United States person is again reasonably believed to
be located outside the United States while an order issued
pursuant to subsection (c) is in effect. Nothing in this
section shall be construed to limit the authority of the
Government to seek an order or authorization under, or
otherwise engage in any activity that is authorized under, any
other title of this Act.
``(b) Application.--
``(1) In general.--Each application for an order under this
section shall be made by a Federal officer in writing upon oath
or affirmation to a judge having jurisdiction under subsection
(a)(1). 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--
``(A) the identity of the Federal officer making
the application;
``(B) the identity, if known, or a description of
the United States person who is the target of the
acquisition;
``(C) a statement of the facts and circumstances
relied upon to justify the applicant's belief that the
United States person who is the target of the
acquisition is--
``(i) a 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;
``(D) a statement of proposed minimization
procedures that meet the definition of minimization
procedures under section 101(h) or 301(4), as
appropriate;
``(E) a description of the nature of the
information sought and the type of communications or
activities to be subjected to acquisition;
``(F) a certification made by the Attorney General
or an official specified in section 104(a)(6) that--
``(i) the certifying official deems the
information sought to be foreign intelligence
information;
``(ii) a significant purpose of the
acquisition is to obtain foreign intelligence
information;
``(iii) such information cannot reasonably
be obtained by normal investigative techniques;
``(iv) designates the type of foreign
intelligence information being sought according
to the categories described in section 101(e);
and
``(v) includes a statement of the basis for
the certification that--
``(I) the information sought is the
type of foreign intelligence
information designated; and
``(II) such information cannot
reasonably be obtained by normal
investigative techniques;
``(G) a summary statement of the means by which the
acquisition will be conducted and whether physical
entry is required to effect the acquisition;
``(H) the identity of any electronic communication
service provider necessary to effect the acquisition,
provided that the application is not required to
identify the specific facilities, places, premises, or
property at which the acquisition authorized under this
section will be directed or conducted;
``(I) 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
``(J) 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.
``(2) Other requirements of the attorney general.--The
Attorney General may require any other affidavit or
certification from any other officer in connection with the
application.
``(3) Other requirements of the judge.--The judge may
require the applicant to furnish such other information as may
be necessary to make the findings required by subsection
(c)(1).
``(c) Order.--
``(1) Findings.--Upon an application made pursuant to
subsection (b), the Foreign Intelligence Surveillance Court
shall enter an ex parte order as requested or as modified by
the Court approving the acquisition if the Court finds that--
``(A) the application has been made by a Federal
officer and approved by the Attorney General;
``(B) on the basis of the facts submitted by the
applicant, for the United States person who is the
target of the acquisition, there is probable cause to
believe that the target is--
``(i) a 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;
``(C) the proposed minimization procedures meet the
definition of minimization procedures under section
101(h) or 301(4), as appropriate; and
``(D) the application that has been filed contains
all statements and certifications required by
subsection (b) and the certification or certifications
are not clearly erroneous on the basis of the statement
made under subsection (b)(1)(F)(v) and any other
information furnished under subsection (b)(3).
``(2) Probable cause.--In determining whether or not
probable cause exists for purposes of paragraph (1)(B), a judge
having jurisdiction under subsection (a)(1) may consider past
activities of the target and facts and circumstances relating
to current or future activities of the target. 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.
``(3) Review.--
``(A) Limitation on review.--Review by a judge
having jurisdiction under subsection (a)(1) shall be
limited to that required to make the findings described
in paragraph (1).
``(B) Review of probable cause.--If the judge
determines that the facts submitted under subsection
(b) are insufficient to establish probable cause under
paragraph (1)(B), the judge shall enter an order so
stating and provide a written statement for the record
of the reasons for the determination. The Government
may appeal an order under this subparagraph pursuant to
subsection (f).
``(C) Review of minimization procedures.--If the
judge determines that the proposed minimization
procedures referred to in paragraph (1)(C) do not meet
the definition of minimization procedures under section
101(h) or 301(4), as appropriate, the judge shall enter
an order so stating and provide a written statement for
the record of the reasons for the determination. The
Government may appeal an order under this subparagraph
pursuant to subsection (f).
``(D) Review of certification.--If the judge
determines that an application pursuant to subsection
(b) does not contain all of the required elements, or
that the certification or certifications are clearly
erroneous on the basis of the statement made under
subsection (b)(1)(F)(v) and any other information
furnished under subsection (b)(3), the judge shall
enter an order so stating and provide a written
statement for the record of the reasons for the
determination. The Government may appeal an order under
this subparagraph pursuant to subsection (f).
``(4) Specifications.--An order approving an acquisition
under this subsection shall specify--
``(A) the identity, if known, or a description of
the United States person who is the target of the
acquisition identified or described in the application
pursuant to subsection (b)(1)(B);
``(B) if provided in the application pursuant to
subsection (b)(1)(H), the nature and location of each
of the facilities or places at which the acquisition
will be directed;
``(C) the nature of the information sought to be
acquired and the type of communications or activities
to be subjected to acquisition;
``(D) a summary of the means by which the
acquisition will be conducted and whether physical
entry is required to effect the acquisition; and
``(E) the period of time during which the
acquisition is approved.
``(5) Directives.--An order approving an acquisition under
this subsection shall direct--
``(A) that the minimization procedures referred to
in paragraph (1)(C), as approved or modified by the
Court, be followed;
``(B) if applicable, an electronic communication
service provider to provide to the Government forthwith
all information, facilities, or assistance necessary to
accomplish the acquisition authorized under such order
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 of the acquisition;
``(C) if applicable, an electronic communication
service provider to maintain under security procedures
approved by the Attorney General any records concerning
the acquisition or the aid furnished that such
electronic communication service provider wishes to
maintain; and
``(D) if applicable, that the Government
compensate, at the prevailing rate, such electronic
communication service provider for providing such
information, facilities, or assistance.
``(6) Duration.--An order approved under this subsection
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
subsection (b).
``(7) Compliance.--At or prior to the end of the period of
time for which an acquisition is approved by an order or
extension under this section, the judge may assess compliance
with the minimization procedures referred to in paragraph
(1)(C) by reviewing the circumstances under which information
concerning United States persons was acquired, retained, or
disseminated.
``(d) Emergency Authorization.--
``(1) Authority for emergency authorization.--
Notwithstanding any other provision of this Act, if the
Attorney General reasonably determines that--
``(A) an emergency situation exists with respect to
the acquisition of foreign intelligence information for
which an order may be obtained under subsection (c)
before an order authorizing such acquisition can with
due diligence be obtained, and
``(B) the factual basis for issuance of an order
under this subsection to approve such acquisition
exists,
the Attorney General may authorize such acquisition if a judge
having jurisdiction under subsection (a)(1) 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 section is made to a judge of the Foreign
Intelligence Surveillance Court as soon as practicable, but not
more than 7 days after the Attorney General authorizes such
acquisition.
``(2) Minimization procedures.--If the Attorney General
authorizes an acquisition under paragraph (1), the Attorney
General shall require that the minimization procedures referred
to in subsection (c)(1)(C) for the issuance of a judicial order
be followed.
``(3) Termination of emergency authorization.--In the
absence of a judicial order approving an acquisition under
paragraph (1), such acquisition shall terminate when the
information sought is obtained, when the application for the
order is denied, or after the expiration of 7 days from the
time of authorization by the Attorney General, whichever is
earliest.
``(4) Use of information.--If an application for approval
submitted pursuant to paragraph (1) 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, 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,

June 23, 2008 | Comments: (29)
40 votes

Uncle Spy Wants You

TAGS: News you can lose, Political pandering, The War on Terror, national insecurity

Last week the House of Representatives passed a "compromise" amendment to the Foreign Intelligence Surveillance Act, though it sounds like the only things that have been compromised are our Constitutional rights. Now the Senate is poised to do the same.

Unfortunately, the FISA Amendments Act of 2008 adds little to existing FISA laws save for one very big thing: immunity for telecoms that violated FISA laws on orders from the White House. Essentially, all Ma Bell and her bastard offspring need to do is present a note that says Uncle Sam made them do it, and the 40-odd lawsuits pending against them vanish.

This rewards companies like AT&T and Verizon that failed to stand up to orders of questionable legality, while punishing companies like Qwest who declined the government's requests. Imagine the cojones it took to say no to the NSA. What are the odds anyone's likely to do that again?

Remember, three Bush appointees -- attorney general John Ashcroft, deputy AG James Comey, and FBI head Robert Mueller -- threatened to resign over this program. So this is clearly not a matter of the NSA forgetting to pick up a few subpoenas on the way home from the grocery store. This was something no one had seen before.

But what exactly was it? The worst thing about the immunity provision is that it closes the door on discovery. We will likely never find out what information the NSA sought, what it found, and what that data was used for. That's a problem.

It's very likely the spooks were involved in a massive data mining operation that involved data from millions of innocent non-terrorist law-abiding Americans. Think I'm being paranoid? Here's what USA Today revealed in May 2006:

The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth, people with direct knowledge of the arrangement told USA TODAY.

The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans — most of whom aren't suspected of any crime. This program does not involve the NSA listening to or recording conversations. But the spy agency is using the data to analyze calling patterns in an effort to detect terrorist activity, sources said in separate interviews.

In other words, they're attempting to create a profile of terrorists, and the only way to do that is to profile a whole lot of non terrorists. And if they happen to catch anyone doing anything else borderline illegal along the way, they can pick and choose whom they want to prosecute. Why should China and Russia have all the fun?

I'm all for hunting down and ferreting out the bad guys, but I draw the line at spying on ordinary Americans. I'm happy to stand in line at the airport or the baseball stadium and have them look through my bags, even though I know it's mostly Security Theater. My phone calls, emails, and Web surfing are another story. If I'm a suspect and you've got a warrant, fine, spy on me. Otherwise, I'd like to be left alone. Is that unreasonable?

Should the telecoms get off scot-free? Post your thoughts below or email me directly: cringe (at) infoworld (dot) com. And try not to say anything too unAmerican -- you know who is probably watching.

http://weblog.infoworld.com/robertxcrin ... wants.html

Bush needs to be IMPEACHED and CHARGED for this B_LL SH_T

CONGRESS needs to BOW their Heads and WALK AWAY from their Office

The TELECOMS NEED TO BE SUED BLIND for breaking the LAW