KLAYMAN v. OBAMA et al

Filing 52

MOTION to Dismiss or, in the Alternative for Summary Judgment, Regarding Plaintiffs' Claims Against the Verizon Defendants by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit)(Patton, Rodney). Added MOTION for Summary Judgment on 12/17/2013 (znmw, ).

Calendar No. 453
110TH CONGRESS
"
1st Session

!

SENATE

REPORT
110–209

FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978
AMENDMENTS ACT OF 2007

OCTOBER 26, 2007.—Ordered to be printed

Mr. ROCKEFELLER, from the Select Committee on Intelligence,
submitted the following

R E P O R T
together with
ADDITIONAL AND MINORITY VIEWS
[To accompany S. 2248]

The Select Committee on Intelligence, having considered an
original 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, reports favorably thereon and recommends that the bill do pass.
BACKGROUND

AND

NEED

FOR

LEGISLATION

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The Committee, since its inception in 1976, has exercised sustained oversight of the Executive branch’s use of electronic surveillance for foreign intelligence purposes. A central focus of that oversight has been the implementation of the Foreign Intelligence Surveillance Act of 1978 (‘‘FISA’’) by the Executive branch and by the
special court established by Congress to provide judicial oversight
of FISA, the Foreign Intelligence Surveillance Court (‘‘FISA
Court’’).
Since the President’s acknowledgement of the existence of a presidential program on December 17, 2005, which has been publicly
described as the Terrorist Surveillance Program, the Committee
has sought to inquire vigorously into the President’s authorization
for the National Security Agency (‘‘NSA’’) to conduct electronic surveillance within the United States without FISA court orders. In
the past year, the ability of the full Committee to perform the Com69–010

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2
mittee’s oversight responsibilities has been significantly augmented
by improved access to information about the program, as well as
information about the shift of activities under that presidential authorization to activities in accordance with orders of the FISA
Court.
The Committee has also carefully reviewed the impact of technological change on FISA collection to assess whether amendments to
FISA should be enacted. On March 23, 2007, the Chairman and
Vice Chairman notified the Attorney General of their intention to
focus on whether FISA should be modernized and whether legislation should be enacted to address legal consequences arising from
the Terrorist Surveillance Program. The Chairman and Vice Chairman also gave notice of their intention to establish a public record
on the question of FISA modernization and requested that the Administration submit a formal legislative request addressing the intelligence challenges arising under FISA in a manner consistent
with the Constitution. The Director of National Intelligence (‘‘DNI’’)
submitted a proposal on April 12, 2007.
The Committee received the cooperation of many officials from
the intelligence community and the Department of Justice in its
oversight activities. The Committee held seven hearings in 2007 on
the issues, received many classified briefings, propounded and received answers to many written questions, and conducted extensive
interviews with several attorneys in the Executive branch who
were involved in the review of the President’s program. In addition,
the Committee received formal testimony from companies alleged
to have participated in the program and reviewed correspondence
that was provided to private sector entities concerning the President’s program. The Committee secured Inspector General reports
and the orders and opinions issued by the FISA Court following the
shift of activities to the judicial supervision of the FISA Court. The
Committee invited statements from experts on national security
law and civil liberties and Committee staff met periodically with
them. The Committee has also examined the extensive testimony
given before other committees in the last several years.
In one particular respect, the Committee’s effort to secure information pertaining to the program was more difficult than it should
have been. The Committee repeatedly requested to see the text of
the presidential authorizations for intelligence collection outside of
FISA and the legal opinions of the Department of Justice that supported those authorizations. Although the Committee had been
learning about the substance of these documents from witnesses,
seeing the actual text was important for obtaining a complete understanding of the program. These documents were only made
available to the Committee for the first time on October 9, 2007.
The Committee believes it has been given access to all of the authorizations and opinions it requested; however, its study of these
documents will continue following the filing of this report.
Based on its inquiry, the Committee has concluded that: (1) the
Protect America Act, enacted in early August, should be revised; (2)
FISA should be amended to provide an additional procedure to facilitate the targeting of persons reasonably believed to be outside
the United States to acquire foreign intelligence information; (3)
additional protections should be afforded to U.S. persons whose
communications are targeted for collection or collected incidentally;

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and (4) narrowly circumscribed civil immunity should be afforded
to companies that may have participated in the President’s program based on written requests or directives that asserted the program was determined to be lawful.

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THE FOREIGN INTELLIGENCE SURVEILLANCE ACT

Created, in part, in response to the surveillance abuses documented by the hearings in the mid 1970s of the Church and Pike
Committees, the Committee helped write the Foreign Intelligence
Surveillance Act of 1978. FISA, supported by President Ford and
signed into law by President Carter, established an independent
court to oversee and authorize electronic surveillance as defined in
the statute, special procedures for the Executive branch to act in
emergencies and wartime, and reporting requirements to the Congress.
FISA offered the Executive branch the certainty of a legal framework, and the affirmation of the Congress, for its intelligence collection activities. While the Supreme Court had expressly declined
to address the issues related to surveillance of foreign powers and
agents of a foreign power in its landmark 1972 decision known as
the Keith case, the Court had held that Section 2511(3) of the Omnibus Crime Control and Safe Streets Act did not constitute a
grant of power to the President with respect to national security
surveillances and that electronic surveillance in domestic security
matters requires an appropriate prior warrant procedure. See
United States v. United States District Court, 407 U.S. 297 (1972).
Whatever the reasonable exercise of presidential power to protect
national security may have been in the 1970s, the enactment of
FISA clarified the validity of the use of information collected under
the statute as evidence in subsequent court proceedings. The Act
ensured that telecommunication carriers that responded to a FISA
court order were given statutory protection against civil liability.
Most importantly, the Act represented a balancing by two branches
of the government of the security and civil liberties of the American
people. As President Carter noted in his signing statement: ‘‘It provides a basis for the trust of the American people in the fact that
the activities of their intelligence agencies are both effective and
lawful.’’
The FISA process has assisted the Government in securing valuable intelligence over almost 30 years. To ensure that it continues
to do so, the statute has been amended many times with the assistance of the Committee to address changing threats, technological
challenges, and problems in its implementation. In 1994, for example, FISA was amended to cover physical searches conducted for
foreign intelligence purposes. After the terrorist attacks of September 11, 2001, in the USA PATRIOT Act, Congress amended
FISA, among other things, to enhance communication and coordination between law enforcement and intelligence personnel, authorize roving wiretaps for foreign intelligence collection, and expand the range of business records that could be obtained with a
FISA order. In other measures since the September 11th attacks,
the Administration has sought, and the Congress has passed,
amendments to FISA to assist the Government in its efforts to detect and prevent terrorist attacks.

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THE PRESIDENT’S PROGRAM

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In December 2005, the American people, and almost all of the
Congress, learned for the first time that, shortly after September
11, 2001, President Bush had authorized the NSA to conduct surveillance activities in the United States to protect the country from
future terrorist attacks. The NSA program was described by the
Department of Justice in January 2006 as ‘‘an early warning system . . . to detect and prevent the next terrorist attack . . . a program with a military nature that requires speed and agility.’’
After the attacks of September 11, 2001, Congress passed a joint
resolution on September 14, 2001, declaring that the attacks ‘‘continue to pose an unusual and extraordinary threat’’ to the country
and calling on the President ‘‘to use all necessary and appropriate
force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any further acts of international terrorism against the United States . . . .’’. Authorization
for Use of Military Force, Pub. L. No. 107–40, section 2(a), 115
Stat. 224 (2001). The President also declared a national emergency
on September 14, 2001, stating that there was ‘‘a continuing and
immediate threat of further attacks on the United States.’’ The intelligence community assessed in October 2001 that additional
waves of al Qaeda attacks were imminent. This assessment was
manifested in the mobilization of 35,000 reservists and National
Guard troops for homeland defense; actions by the Attorney General putting all federal and state law enforcement officials and the
U.S. business community on the ‘‘highest level of alert’’; and the
formal announcement of the FBI that the Government had reason
to believe that new terrorist attacks might be launched in the
United States over the next several days. It was during this period
that the President first authorized the program.
Although the intelligence community assessed the threat to be
imminent in October 2001, its concerns have persisted to the
present day. The United Kingdom aviation plot of August 2006 and
the bombing plots in Germany in 2007 are only two of the most recent examples of the continuing threat.
The NSA’s activities were reauthorized by the President on a
periodic basis through January 2007. Over time, the program was
modified to reflect new contingencies. Attorneys from the Office of
Legal Counsel of the Department of Justice generated legal opinions throughout the duration of the program.
In a letter to the Congress on January 17, 2007, the Attorney
General announced that a judge of the Foreign Intelligence Surveillance Court ‘‘had issued orders authorizing the government to target for collection international communications where there is probable cause to believe one of the communicants is a member or
agent of al Qaeda or an associated terrorist group. As a result of
these orders, any electronic surveillance that was occurring as part
of the Terrorist Surveillance Program will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court.’’

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THE FISA COURT ORDERS AND FISA MODERNIZATION

On April 12, 2007, the Director of National Intelligence J.M.
McConnell submitted to the Congress the Administration’s proposal
to modernize the Foreign Intelligence Surveillance Act. According
to the DNI, the proposal was intended to bring FISA ‘‘up to date
with the changes in communications technology,’’ preserve ‘‘the privacy interests of persons in the United States,’’ and secure assistance from private entities, in part by making certain ‘‘they are protected from liability for having assisted the government in its
counterterrorism efforts.’’ The Committee held a hearing on the
proposal on May 1, 2007, with the DNI, the Director of the National Security Agency, and the Assistant Attorney General for National Security, with additional testimony solicited for the record
from a range of experts on national security law and civil liberties.
The Administration’s proposal for FISA modernization was comprehensive, and had been coordinated within the Department of
Justice and the intelligence community. At the end of May 2007,
however, attention was drawn to a ruling of the FISA Court. When
a second judge of the FISA Court considered renewal of the January 2007 FISA orders, he issued a ruling that the DNI later described as significantly diverting NSA analysts from their
counterterrorism mission to provide information to the Court. In
late July, the DNI informed Congress that the decision of the second FISA Court judge had led to degraded capabilities in the face
of a heightened terrorist threat environment. The DNI urged the
Congress to act prior to the August recess to eliminate the requirement of a court order to collect foreign intelligence about foreign
targets located overseas.

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THE PROTECT AMERICA ACT

During the final week of July, the House and Senate considered
several measures to meet the requirements of the DNI. On August
3, 2007, the Senate adopted S. 1927, the Protect America Act of
2007 (the PAA), and the House passed the bill on August 4, 2007.
Signed by the President on August 5, 2007, the PAA authorized the
Director of National Intelligence and the Attorney General to acquire foreign intelligence information ‘‘concerning’’ persons outside
the United States for one year, if the acquisition involved the assistance of a communication service provider, custodian or other
person, and a significant purpose of the collection was the acquisition of foreign intelligence information. The Act was set to sunset
after 180 days, on February 1, 2008.
The PAA sparked serious concerns about its reach and scope.
The Committee immediately began to review the Act’s implementation. The Committee also began a series of consultations to draft
a bipartisan proposal to replace the PAA that would authorize the
acquisition of foreign intelligence information in light of the advances in technology since 1978 with improved protections for the
privacy interests of Americans whose communications might be targeted or incidentally collected. Finally, recognizing the importance
of the private sector in assisting law enforcement and intelligence
officials in critical criminal justice and national security activities,
the Committee reviewed a range of possible responses to pending
civil litigation.

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TITLE I OF THE FISA AMENDMENTS ACT OF 2007
In the FISA Amendments Act of 2007, the Committee’s goal has
been to develop a sound legal framework for essential intelligence
activities in a manner consistent with the U.S. Constitution. As in
the Protect America Act, the Attorney General and the Director of
National Intelligence may authorize the targeting of foreign terrorists and other foreign intelligence targets reasonably believed to be
located outside the United States for the purpose of acquiring foreign intelligence without obtaining individualized court orders from
the Foreign Intelligence Surveillance Court, but the bill also significantly increases protections of the civil liberties of U.S. persons
located inside and outside the United States.
The FISA Amendments Act of 2007 contains both specific limitations and explicit prohibitions with respect to the collection of U.S.
person information. The Protect America Act authorized the acquisition of foreign intelligence information ‘‘concerning’’ persons outside the United States. The vagueness of the word ‘‘concerning’’ created uncertainty as to whether persons inside the United States
could be targeted to obtain information ‘‘concerning’’ persons outside the United States. Under this bill, acquisition is permitted
only if it ‘‘targets’’ persons who are reasonably believed to be located outside the United States.
In addition, the bill prohibits reverse targeting: conducting surveillance on someone outside the United States for the purpose of
targeting a particular known person in the United States. The bill
maintains the general requirement that electronic surveillance of a
person within the United States for foreign intelligence purposes
must be done in accordance with an order from the FISA Court.
The bill also requires the Government to obtain an order from the
Foreign Intelligence Surveillance Court prior to targeting U.S. persons overseas under the authority of the bill.
The FISA Amendments Act of 2007 increases the role of the
FISA Court with respect to targeting under the authority of the
Act. Unlike the Protect America Act, the FISA Amendments Act
mandates FISA Court review and approval of the minimization
procedures governing the protection of the identities and non-public
information about U.S. persons. The FISA Amendments Act of
2007 also provides statutory rules for the use of information acquired under the Act, something that was not included in the Protect America Act. The new Title VII created by this bill specifically
provides that information from Title VII acquisitions will be governed by the statutory rules that are applicable to electronic surveillance.
The Committee chose to repeal the operative provisions of the
Protect America Act in this bill. The Committee set the duration
of this Act at six years with the expectation that the Congress
would exercise continuing oversight of operations carried out under
its authority. The Committee established transition procedures intended to set clear rules for the treatment of orders, authorizations,
and directives initiated under the authority of the Foreign Intelligence Surveillance Act both before and after the enactment of the
Protect America Act, and under this Act.
The Committee also reaffirmed the 1978 statement in FISA that
the Act and provisions of Title 18 are the exclusive means by which

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electronic surveillance and the interception of domestic communications may be conducted.
BACKGROUND

ON

PENDING LITIGATION

CIVIL SUITS AGAINST ELECTRONIC COMMUNICATION SERVICE
PROVIDERS

After the media reported the existence of a surveillance program
in December of 2005, lawsuits were filed against a variety of electronic communication service providers for their alleged participation in the program reported in the media. As of the date of this
Committee report, more than forty lawsuits relating to that reported surveillance program had been transferred to a district
court in the Northern District of California by the Judicial Panel
on Multidistrict Litigation.
The lawsuits allege that electronic communication service providers assisted the federal government in intercepting phone and
internet communications of people within the United States, for the
purpose of both analyzing the content of particular communications
and searching millions of communications for patterns of interest.
Some of the lawsuits against the providers seek to enjoin the providers from furnishing records to the intelligence community. Other
suits seek damages for alleged statutory and constitutional violations from the alleged provision of records to the intelligence community. Collectively, these suits seek hundreds of billions of dollars
in damages from electronic communication service providers.
The Government intervened in a number of these suits to assert
the state secrets privilege over particular facts, including whether
the companies being sued assisted the Government. The Government also sought to dismiss the suits on state secrets grounds, arguing that the very subject matter of the lawsuits is a state secret.
Ultimately, this Government assertion of the state secrets privilege
seeks to preclude judicial review of whether, and pursuant to what
authorities, any particular provider assisted the Government.
Although the Government has sought to dismiss these suits, the
future outcome of this litigation is uncertain. Even if these suits
are ultimately dismissed on state secrets or other grounds, litigation is likely to be protracted, with any additional disclosures resulting in renewed applications to the court to allow litigation to
proceed.

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STATE REGULATORY INVESTIGATIONS

In addition to the civil declaratory judgment and damages suits,
a number of state public utilities commissions have opened investigations of electronic communication service providers for their alleged provision of assistance to the intelligence community. These
public utilities commissions are seeking to investigate whether the
companies violated state privacy rights by providing customer
records to agencies of the federal government.
The federal government filed suit seeking to enjoin state officials
in five states from further investigation of electronic communication service providers for their alleged disclosure of customer telephone records to the National Security Agency. These cases were
transferred by the Judicial Panel on Multidistrict Litigation to the
Northern District of California in February 2007. In July 2007, the

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district court found that these state investigations were not preempted by either the Supremacy Clause or the foreign affairs
power of the federal government.
The Government may yet prevail in preventing state regulatory
investigations of whether particular providers furnished customer
records to the intelligence community. But, like the civil suits filed
against providers, the outcome of this litigation is uncertain and
will likely involve further protracted proceedings.
SUITS AGAINST THE GOVERNMENT

In addition to the lawsuits involving telecommunications providers, a small number of lawsuits were filed directly against the
Government challenging the President’s surveillance program.
These suits allege that the President’s program violated the Constitution and numerous statutory provisions, including the exclusivity provisions of the Foreign Intelligence Surveillance Act. These
cases are at a variety of different stages of district court and appellate review. Nothing in this bill is intended to affect these suits
against the Government or individual Government officials.
TITLE II OF THE FISA AMENDMENTS ACT OF 2007
Title II of this bill reflects the Committee’s belief that there is
a strong national interest in addressing the extent to which the
burden of litigation over the legality of surveillance should fall on
private parties. Based on a review of both current immunity provisions and historical information on the President’s program, the
Committee identified three issues relating to the exposure of electronic communication service providers to liability that needed to
be addressed in this bill.
First, the Committee considered the exposure to liability of providers who allegedly participated in the President’s surveillance
program. Second, the Committee considered the absence, in current
law, of a procedural mechanism that would give courts an appropriate role in assessing statutory immunity provisions that would
otherwise be subject to the state secrets privilege. Third, the Committee sought to clarify the role of state public utility commissions
in regulating electronic communication service providers’ relationships with the intelligence community. The Committee addressed
these three issues, respectively, in sections 202, 203, and 204 of the
bill.

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RETROACTIVE IMMUNITY

Sections 201 and 202 of the bill provide focused retroactive immunity for electronic communication service providers that were alleged to have cooperated with the intelligence community in implementing the President’s surveillance program. Only civil lawsuits
against electronic communication service providers alleged to have
assisted the Government are covered under the provision. The
Committee does not intend for this section to apply to, or in any
way affect, pending or future suits against the Government as to
the legality of the President’s program.
Section 202 was narrowly drafted to apply only to a specific intelligence program. Section 202 therefore provides immunity for an
intelligence activity involving communications that was designed to

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detect or prevent a terrorist attack, or activities in preparation for
a terrorist attack, that was authorized in the period between September 11, 2001 and January 17, 2007, and that was described in
written requests to the electronic communication service provider
as authorized by the President and determined to be lawful.
The extension of immunity in section 202 reflects the Committee’s determination that electronic communication service providers
acted on a good faith belief that the President’s program, and their
assistance, was lawful. The Committee’s decision to include liability
relief for providers was based in significant part on its examination
of the written communications from U.S. Government officials to
certain providers. The Committee also considered the testimony of
relevant participants in the program.
The details of the President’s program are highly classified. As
with other intelligence matters, the identities of persons or entities
who provide assistance to the U.S. Government are protected as
vital sources and methods of intelligence. But it reveals no secrets
to say—as the Foreign Intelligence Surveillance Act, this bill, and
Title 18 of the U.S. Code all make clear—that electronic surveillance for law enforcement and intelligence purposes depends in
great part on the cooperation of the private companies that operate
the Nation’s telecommunication system.
It would be inappropriate to disclose the names of the electronic
communication service providers from which assistance was
sought, the activities in which the Government was engaged or in
which providers assisted, or the details regarding any such assistance. The Committee can say, however, that beginning soon after
September 11, 2001, the Executive branch provided written requests or directives to U.S. electronic communication service providers to obtain their assistance with communications intelligence
activities that had been authorized by the President.
The Committee has reviewed all of the relevant correspondence.
The letters were provided to electronic communication service providers at regular intervals. All of the letters stated that the activities had been authorized by the President. All of the letters also
stated that the activities had been determined to be lawful by the
Attorney General, except for one letter that covered a period of less
than sixty days. That letter, which like all the others stated that
the activities had been authorized by the President, stated that the
activities had been determined to be lawful by the Counsel to the
President.
The historical context of requests or directives for assistance was
also relevant to the Committee’s determination that electronic communication service providers acted in good faith. The Committee
considered both the extraordinary nature of the time period following the terrorist attacks of September 11, 2001, and the fact
that the expressed purpose of the program was to ‘‘detect and prevent the next terrorist attack’’ in making its assessment.
On the basis of the representations in the communications to
providers, the Committee concluded that the providers, in the
unique historical circumstances of the aftermath of September 11,
2001, had a good faith basis for responding to the requests for assistance they received. Section 202 makes no assessment about the
legality of the President’s program. It simply recognizes that, in the
specific historical circumstances here, if the private sector relied on

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written representations that high-level Government officials had
assessed the program to be legal, they acted in good faith and
should be entitled to protection from civil suit.
The requirements of section 202 reflect the Committee’s determination that cases should only be dismissed when providers acted
in good faith. Section 202 applies only to assistance provided by
electronics communication service providers pursuant to a ‘‘written
request or directive from the Attorney General or the head of an
element of the intelligence community. . . that the program was
authorized by the President and determined to be lawful.’’
Section 202 also preserves an important role for the courts. Although the bill reflects the Committee’s determination that, if the
requirements of section 202 are met, the provider acted in good
faith, the section allows judicial review of whether the Attorney
General has abused the discretion provided by statute in certifying
that a provider either furnished no assistance or cooperated with
the Government under the terms referenced in the section.
In determining whether to provide retroactive immunity, the
Committee weighed the incentives such immunity would provide.
As described above, electronic communication service providers
play an important role in assisting intelligence officials in national
security activities. Indeed, the intelligence community cannot obtain the intelligence it needs without assistance from these companies. Given the scope of the civil damages suits, and the current
spotlight associated with providing any assistance to the intelligence community, the Committee was concerned that, without
retroactive immunity, the private sector might be unwilling to cooperate with lawful Government requests in the future without unnecessary court involvement and protracted litigation. The possible
reduction in intelligence that might result from this delay is simply
unacceptable for the safety of our Nation.
At the same time, the Committee recognized that providers play
an essential role in ensuring that the Government complies with
statutory requirements before collecting information that may impact the privacy interests of U.S. citizens. Because the Government
necessarily seeks access to communications through the private
sector, providers have the unparalleled ability to insist on receiving
appropriate statutory documentation before agreeing to provide any
assistance to the Government.
The Committee sought to maintain the balance between these
factors by providing retroactive immunity that is limited in scope.
The provision of retroactive immunity was intended to encourage
electronic communication service providers who acted in good faith
in the particular set of circumstances at issue to cooperate with the
Government when provided with lawful requests in the future. Restricting that immunity to discrete past activities avoids disrupting
the balance of incentives for electronic communication service providers to require compliance with statutory requirements in the future. Under this bill and existing statutory provisions, providers
will only be entitled to protection from suit for their future activities if they ensure that their assistance is conducted in accordance
with statutory requirements.
The Committee believes that adherence to precise, existing statutory forms is greatly preferred. This preference is reflected in section 203 of the bill, which establishes procedures by which civil ac-

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tions against those who assist the Government shall be dismissed
upon a certification by the Attorney General that any assistance
had been provided pursuant to a court order or a statutorily-prescribed certification or directive. The action the Committee proposes for claims arising out of the President’s program should be
understood by the Executive branch and providers as a one-time
response to an unparalleled national experience in the midst of
which representations were made that assistance to the Government was authorized and lawful.

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PROCEDURES FOR IMPLEMENTING STATUTORY DEFENSES

Section 203 of this bill provides a procedure that can be used in
the future to seek dismissal of a suit when a defendant either provided assistance pursuant to a lawful statutory requirement, or did
not provide assistance. This section, a new section 802 of FISA, reflects the Committee’s recognition that the identities of persons or
entities who provide assistance to the intelligence community are
properly protected as sources and methods of intelligence.
Under the existing statutory scheme, wire or electronic communication providers are authorized to provide information and assistance to persons with authority to conduct electronic surveillance if
the providers have been provided with (1) a court order directing
the assistance, or (2) a certification in writing signed by the Attorney General or certain other officers that ‘‘no warrant or court
order is required by law, that all statutory requirements have been
met, and that the specific assistance is required.’’ See 18 U.S.C.
§ 2511(2)(a)(ii). Current law therefore envisions that wire and electronic communication service providers will play a lawful role in
the Government’s conduct of electronic surveillance.
Section 2511(2)(a)(ii) protects these providers from suit as long as
their actions are consistent with statutory authorizations. Once
electronic communication service providers have a court order or
certification, ‘‘no cause of action shall lie in any court against any
provider of wire or electronic communication service . . . for providing information, facilities, or assistance in accordance with the
terms of a court order, statutory authorization, or certification
under this chapter.’’ Id. The Protect America Act and Title I of this
bill provide similar protections from suit for providing information
or assistance in accordance with statutory directives. All of these
immunity provisions are designed to ensure that wire and electronic communication service providers assist the Government with
electronic surveillance activities when necessary, and recognize the
good faith of those providers who assist the Government in accordance with the statutory scheme.
To the extent that any existing immunity provisions are applicable, however, providers have not been able to benefit from the provisions in the civil cases that are currently pending. Because the
Government has claimed the state secrets privilege over the question of whether any particular provider furnished assistance to the
Government, an electronic communication service provider who cooperated with the Government pursuant to a valid court order or
certification cannot prove it is entitled to immunity under section
2511(2)(a)(ii) without disclosing the information deemed privileged
by the Executive branch. Thus, electronic communication providers
are prohibited from seeking immunity under section 2511(2)(a)(ii)

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for any assistance they may have provided to the intelligence community, with the approval of the FISA Court, after January 17,
2007. Providers who did not assist the Government are similarly
unable to extract themselves from ongoing litigation, because the
assertion of the state secrets privilege makes it impossible for them
to demonstrate their lack of involvement.
By addressing the situation in which an entity is prohibited from
taking advantage of existing immunity provisions because of Government restrictions on disclosure of the information, Section 203
seeks to ensure that existing immunity provisions have their intended effect. The Committee also intends to reassure providers
that as long as their assistance to the Government is conducted in
accordance with statutory requirements, they will be protected
from civil liability and the burden of further litigation.
The procedure in section 203 allows a court to review a certification as to whether an individual either assisted the Government
pursuant to a lawful statutory requirement or did not assist the
Government, even when public disclosure of such facts would harm
the national security. Because an assertion of state secrets over the
same facts would likely prevent all judicial review over whether,
and under what authorities, an individual assisted the Government, this provision serves to expand judicial review to an area
that may have been previously non-justiciable. In addition, the
statute explicitly allows the court to review for abuse of discretion
the Attorney General’s certification that a person either did not assist the Government or cooperated with the Government pursuant
to statutory requirements.
PREEMPTION

Section 204 of the bill preempts state investigations or required
disclosure of information about the relationship between individual
electronic communication service providers and the intelligence
community. The provision reflects the Committee’s view that, although states play an important role in regulating electronic communication service providers, they should not be involved in regulating the relationship between electronic communication service
providers and the intelligence community.
SECTION-BY-SECTION ANALYSIS

AND

EXPLANATION

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OVERALL ORGANIZATION OF BILL

The FISA Amendments Act of 2007 contains three titles.
Title I includes, in section 101, a new Title VII of FISA entitled
‘‘Additional Procedures for Targeting Communications of Certain
Persons Outside the United States.’’ This new title of FISA (which
will sunset in six years) is a successor to the Protect America Act
with amendments. Sections 102 through 109 contain a number of
amendments to FISA apart from the collection issues addressed in
the new Title VII of FISA. These include a provision reaffirming
that FISA is the exclusive means for electronic surveillance and
important streamlining provisions.
Title II addresses, in accordance with its title, ‘‘Protections for
Electronic Communication Service Providers.’’ Section 202 establishes a procedure with precise boundaries for liability relief for
electronic communication service providers in civil cases involving

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an intelligence activity authorized by the President between September 11, 2001, and January 17, 2007.
Title II also includes, in sections 203 and 204, a new Title VIII
of FISA entitled ‘‘Protection of Persons Assisting the Government.’’
This new title establishes long-term procedures for two matters.
One, in section 203, is the manner in which the Government may
implement statutory defenses and obtain the dismissal of civil
cases against persons, principally electronic communication service
providers, who assist elements of the intelligence community in accordance with defined legal documents, namely, orders of the FISA
Court or certifications or directives provided for and defined by
statute. The other, in section 204, provides for the protection, by
way of preemption, of the federal government’s ability to conduct
intelligence activities without interference by state investigations.
Title III contains important transition procedures for the transition from the Protect America Act to the new Title VII of FISA, as
well as authority for the Government to continue to apply to the
FISA Court for orders under Title I of FISA in accordance with the
law as it stood, in the main, before the Protect America Act. It also
contains provisions on the continuation of authorizations, directives, and orders under Title VII that are in effect at the time of
the December 21, 2013 sunset, until their expiration within the
year following the sunset.
TITLE I. FOREIGN INTELLIGENCE SURVEILLANCE

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Section 101. Targeting the communications of persons outside the
United States
Section 101(a) of this bill establishes a new Title VII of FISA.
Entitled ‘‘Additional Procedures for Targeting Communications of
Certain Persons Outside the United States,’’ the new title includes,
with important modifications, the authority that had been enacted
by the Protect America Act as sections 105A, 105B, and 105C of
FISA. Those Protect America Act provisions, which will be repealed
by section 302(b)(1) of this bill (or expire on February 1, 2008 in
accordance with that Act’s 180-day sunset), had been placed within
FISA’s Title I on electronic surveillance. Moving the amended authority to a title of its own is appropriate because the authority involves not only the acquisition of communications as they are being
carried, the province of Title I, but also while they are stored by
electronic communication service providers, a form of acquisition
akin to physical searches under Title III.
Section 701. Limitation on definition of electronic surveillance
Section 701, as added by Title I of this bill, limits the definition
of the term ‘‘electronic surveillance,’’ as that term is defined in
Title I of FISA. Two sections added by this bill—section 704 in
Title VII on the use of information obtained under Title VII and
section 112 in Title I on FISA as the exclusive means for electronic
surveillance—negate that limitation for the matters covered by
those sections.
The origin of section 701 is section 105A, as added for six months
to FISA by the Protect America Act. Described in its heading as a
‘‘clarification’’ applicable to the electronic surveillance of persons

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outside the United States, section 105A provides that ‘‘Nothing in
the definition of electronic surveillance under section 101(f) shall be
construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States.’’
Section 701 substitutes the phrase ‘‘limitation on definition’’ for
the term ‘‘clarification’’ in order to characterize the provision more
accurately.
Section 701 modifies section 105A by explicitly providing that the
limitation on the definition of electronic surveillance applies to surveillance that is ‘‘targeted in accordance with this title.’’ In other
words, the limitation on the Title I definition of electronic surveillance is no broader than the authority under Title VII for electronic
surveillance targeted at persons reasonably believed to be outside
the United States.

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Section 702. Definitions
Section 702 incorporates into Title VII the definition of ten terms
that are defined in Title I of FISA and used in Title VII: ‘‘agent
of a foreign power,’’ ‘‘Attorney General,’’ ‘‘contents,’’ ‘‘electronic surveillance,’’ ‘‘foreign intelligence information,’’ ‘‘foreign power,’’
‘‘minimization procedures,’’ ‘‘United States,’’ ‘‘United States person,’’ and ‘‘person.’’ It defines the two courts established in Title I
that are assigned responsibilities under Title VII: The Foreign Intelligence Surveillance Court and the Foreign Intelligence Surveillance Court of Review. It also defines ‘‘element of the intelligence
community’’ as found in the National Security Act of 1947. Finally,
it also defines a term, not previously defined in FISA, that has an
important role in setting the parameters of Title VII: ‘‘electronic
communication service provider.’’
Section 703. Procedures for acquiring the communications of
certain persons outside the United States
Subsection 703(a) sets forth the basic authorization in Title VII,
replacing section 105B of the Protect America Act. As had been
provided by section 105B, the collection authority in subsection
703(a) is vested in the Attorney General and the Director of National Intelligence, acting jointly, whose authorization shall be for
a period of up to one year.
Section 105B and subsection 703(a) differ in an important respect. Section 105B authorized the acquisition of foreign intelligence information ‘‘concerning’’ persons reasonably believed to be
outside the United States. To make clear that all collection under
Title VII must be targeted at persons who are reasonably believed
to be outside the United States, subsection 703(a) eliminates the
word ‘‘concerning’’ and instead authorizes ‘‘the targeting of persons
reasonably believed to be located outside the United States to collect foreign intelligence information.’’
Subsection 703(b) establishes three related limitations on the authorization in subsection 703(a). One is a specific prohibition on
using this authority to target intentionally any person within the
United States. The second is that the authority may not be used
to conduct ‘‘reverse targeting,’’ the intentional targeting of a person
reasonably believed to be outside the United States if the purpose
of the acquisition is to target for surveillance a person reasonably
believed to be in the United States. If that is so, the acquisition

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15
must be conducted in accordance with Title I of FISA. The third
is an overarching mandate that the authorization in subsection
703(a) shall be used in a manner consistent with the Fourth
Amendment to the U.S. Constitution, which provides for ‘‘the right
of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’’
Subsection 703(c) addresses United States persons located outside the United States. Subsection 703(c)(1), under the heading of
‘‘Acquisition Inside the United States of United States Persons
Outside the United States,’’ provides that an acquisition authorized
under subsection 703(a) that occurs inside the United States may
not target a United States person except in accordance with Title
I of FISA.
Subsection 703(c)(2), under the heading of ‘‘Acquisition Outside
the United States of United States Persons Outside the United
States,’’ provides that a U.S. person who is reasonably believed to
be outside the United States may not be intentionally targeted if
a warrant would be required if the surveillance technique were
used in the United States, unless the procedures of the subsection
are followed. There are two principal requirements. First, the Attorney General must submit to the FISA Court an application with
facts showing there is probable cause that the target is a foreign
power or an agent of one, and the court must determine that there
is probable cause. Second, the Attorney General must submit to the
FISA Court procedures for determining whether a person outside
the United States is a U.S. person, the court must approve those
procedures, and the procedures must be used.
Subsection 703(d) provides that acquisitions authorized under
subsection 703(a) may only be conducted pursuant to a certification
of the Attorney General and DNI and in accordance with targeting
and minimization procedures that are then subject to judicial review.
Subsection 703(e) provides, in a manner essentially identical to
the Protect America Act, for the establishment by the Attorney
General, in consultation with the Director of National Intelligence,
of targeting procedures that are reasonably designed to ensure that
collection is limited to the communications of persons reasonably
believed to be outside the United States. As provided in the Protect
America Act, the targeting procedures are subject to judicial review.
Subsection 703(f) provides that the Attorney General, in consultation with the Director of National Intelligence shall establish,
for acquisitions authorized by subsection 703(a), minimization procedures that are consistent with section 101(h). Section 101(h) is
the provision that establishes FISA’s minimization requirements
for electronic surveillance and physical searches. Subsection
703(f)(2) provides that the minimization procedures, which are essential to the protection of United States citizens and permanent
residents, shall be subject to judicial review. This corrects an omission in the Protect America Act which had not provided for judicial
review of the adherence of minimization procedures to statutory requirements.
Subsection 703(g) sets forth the elements that must be included
in the certification of the Attorney General and the DNI, which include that the targeting and minimization procedures have been

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16
approved by the FISA Court or will promptly be submitted to it
and that the procedures are consistent with the Fourth Amendment, that a significant purpose of the acquisition is to obtain foreign intelligence information, and that the acquisition involves obtaining that information from or with the assistance of an electronic communication service provider. As with the Protect America
Act, the certification is not required to identify the specific facilities, places, premises, or property at which the acquisition under
subsection 703(a) will be directed or conducted. The certification
shall be submitted to the FISA Court as soon as possible but no
later than five days after it is made and be subject to judicial review. The Committee believes that, given that the certification has
already been prepared, it should be given promptly to the court.
Subsection 703(h) authorizes the Attorney General and the DNI
to direct, in writing with respect to an authorization under subsection 703(a), an electronic communication service provider to provide the Government with all information, facilities, or assistance
necessary to accomplish the acquisition. It requires compensation
for this assistance and provides that no cause of action shall lie in
any court against an electronic communication service provider for
its assistance in accordance with a directive. Subsection 703(h) also
establishes procedures in the FISA Court for a provider to challenge the legality of a directive or the Government to enforce it. In
either case, the question for the court is whether the directive
meets the requirements of section 703 and is otherwise lawful.
Subsection 703(i) provides for judicial review of any certification
required by subsection 703(d) and the targeting and minimization
procedures adopted pursuant to subsections 703(e) and (f). The
court shall review certifications to determine whether they contain
all the required elements. It shall review targeting procedures to
assess whether they are reasonably designed to ensure that the acquisition activity is limited to the targeting of persons reasonably
believed to be located outside the United States. The Protect America Act had limited the review of targeting procedures to a ‘‘clearly
erroneous’’ standard; subsection 703(i) omits that limitation. With
respect to minimization procedures, subsection 703(i) provides that
the court shall review them to assess whether they meet the statutory requirement.
If the FISA Court finds that the certification contains all the required elements and that the targeting and minimization procedures are consistent with the requirements of subsections 703(e)
and (f) and with the Fourth Amendment, the court shall enter an
order approving their continued use for the acquisition authorized
by subsection 703(a). If the court does not so find, it shall order the
Government, at its election, to correct any deficiencies or cease the
acquisition. Acquisitions shall continue during the pendency of any
rehearing en banc or appeal to the Foreign Intelligence Surveillance Court of Review.
Subsection 703(j) provides that judicial proceedings under section
703 shall be conducted as expeditiously as possible.
Subsection 703(k) requires that records of proceedings under section 703 shall be maintained under security measures adopted by
the Chief Justice in consultation with the Attorney General and
the DNI, for the filing of petitions under seal and for review by the
FISA Court ex parte and in camera of any Government submission

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or portions of one that may include classified information, and for
retention of directives or orders for not less than 10 years.
Subsection 703(l) provides for oversight of the implementation of
Title VII. It has four parts. First, the Attorney General and the
DNI shall assess semiannually under subsection 703(l)(1) compliance with the targeting and minimization procedures and submit
the assessment to the FISA Court and the congressional intelligence committees. Second, under subsection 703(l)(2), the Inspectors General of the Department of Justice and of any intelligence
community element authorized to acquire foreign intelligence
under subsection 703(a) are authorized to review compliance of
their agency or element with the targeting and minimization procedures. Subsection 703(l)(2)(B) and (C) mandate several numbers
that the Inspectors General shall review with respect to United
States persons. Their reports shall be submitted to the Attorney
General, the DNI, and the intelligence committees. Third, under
subsection 703(l)(3), the head of an intelligence community element
that conducts a subsection 703(a) acquisition shall review annually
whether there is reason to believe that foreign intelligence information has been or will be obtained from the acquisition. The annual
review is to be submitted to the FISA Court and to the Intelligence
Committees. Finally, under subsection 703(l)(4), the Attorney General is to ‘‘fully inform’’ the congressional Intelligence and Judiciary
Committees about implementation of the Act at least semiannually.
Section 704. Use of information acquired under Section 703
Section 704 fills a void that has existed under the Protect America Act which had contained no provision governing the use of acquired intelligence. Section 704 provides that information acquired
from an acquisition conducted under section 703 shall be deemed
to be information acquired from an electronic surveillance pursuant
to Title I for the purposes of section 106, which is the provision of
Title I that governs public disclosure or use in criminal proceedings. The one exception is for subsection (j) of section 106, as
the notice provision in that subsection, while manageable in individual Title I proceedings, would present a difficult national security question when applied to a Title VII acquisition.
Section 101(b). Table of contents
Section 101(b) of the bill amends the table of contents in the first
section of FISA.

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Subsection 101(c). Sunset
Section 101(c) of the bill establishes the sunset of the new Title
VII of FISA on December 31, 2013.
Section 102. Exclusive means
Section 102 amends Title I of FISA by adding a new Section 112.
Under the heading of ‘‘Statement of Exclusive Means,’’ the new section states: ‘‘Chapters 119 and 121 of Title 18, United States Code,
and this Act shall be the exclusive means by which electronic surveillance (as defined in section 101(f), regardless of the limitation
of section 701) and the interception of domestic wire, oral, or electronic communication may be conducted.’’ It is based on a provision

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which Congress enacted in 1978 as part of the original FISA that
is codified in section 2511(2)(f) of Title 18, United States Code.
Section 112 modifies the Title 18 language in one important respect. To preserve the full application of the exclusive means requirement to ‘‘electronic surveillance’’ as defined from FISA’s enactment until the ‘‘clarification’’ of the Protect America Act and the related ‘‘limitation’’ that will be added by this bill, Section 112 provides that the exclusive means requirement applies ‘‘regardless of
the limitation of section 701.’’
In agreeing to include this exclusive means provision in their
joint mark, the Chairman and Vice Chairman also agreed that the
Committee, in this report, should adopt the explanation of the exclusive means requirement that the Conference Committee included in its 1978 report on FISA, H.R. Conf. Rep. No. 95–1720,
at 35 (1978). The 1978 conferees noted that the Senate had proposed that FISA be the exclusive means for conducting electronic
surveillance, but that the House had countered with an amendment that FISA should be the exclusive ‘‘statutory means’’ of conducting electronic surveillance within the meaning of FISA. The
1978 conference substitute adopted the Senate provision which
omitted the word ‘‘statutory,’’ as does the present bill.
The 1978 conference report addressed the constitutional implications of the legislation that it was reporting:
The conferees agree that the establishment by this act
of exclusive means by which the President may conduct
electronic surveillance does not foreclose a different decision by the Supreme Court. The intent of the conferees is
to apply the standard set forth in Justice Jackson’s concurring opinion in the Steel Seizure Case: ‘‘When a President
takes measures incompatible with the express or implied
will of Congress, his power is at the lowest ebb, for then
he can rely only upon his own Constitutional power minus
any Constitutional power of Congress over the matter.’’
Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579,
637 (1952).
The intent of this Committee is the same. While the exclusive
means test in Section 112 does not foreclose the Supreme Court
from reaching a different decision, the intent of Section 112 is to
place any power of the President to disregard it ‘‘at the lowest ebb.’’
Section 103. Significant interpretations of FISA
Section 6002 of the Intelligence Reform Act and Terrorism Prevention Act of 2004 (Pub. L. 108–458), added a Title VI to FISA
that augments the semiannual reporting obligations of the Attorney General to the House and Senate Intelligence and Judiciary
Committees. Under it, the Attorney General shall report a summary of significant legal interpretations of FISA in matters before
the Foreign Intelligence Surveillance Court or Court of Review. The
requirement extends to interpretations presented in applications or
pleadings filed with either court by the Department of Justice. In
addition to the semiannual summary, the Department of Justice is
required to provide copies of court decisions, but not orders, that
include significant interpretations of FISA. The importance of the
reporting requirement is that, because the two courts conduct their

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business in secret, Congress needs the reports to know how the law
it has enacted is being interpreted.
Section 103 improves the Title VI reporting requirements in two
ways. First, as significant legal interpretations may be included in
orders as well as opinions, Section 103 requires that orders also be
provided to the committees. Second, as the semiannual report often
takes many months after the end of the semiannual period to prepare, Section 103 accelerates provision of information about significant legal interpretations by requiring the submission of such decisions, orders, or opinions within 45 days.
OVERVIEW OF SECTIONS 104 THROUGH SECTION 108. FISA
STREAMLINING

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Sections 104 through 108 amend various sections of FISA for
such purposes as reducing a paperwork requirement, modifying
time requirements, or providing additional flexibility in terms of
the range of Government officials who authorize FISA actions. Collectively, these amendments are described as streamlining amendments. In general, they are intended to increase the efficiency of
the FISA process without depriving the Foreign Intelligence Surveillance Court of the information it needs to make findings required under FISA.
Section 104. Applications for court orders under Section 104 of
FISA
Section 104 of the bill strikes two of the eleven paragraphs on
standard information in an application for a surveillance order
under section 104 of FISA, either because the information is provided elsewhere in the application process or is not needed.
In various places, FISA has required the submission of ‘‘detailed’’
information, as in section 104 of FISA, ‘‘a detailed description of
the nature of the information sought and the type of communications or activities to be subjected to the surveillance.’’ The Director
of National Intelligence’s legislative proposal asked that ‘‘summary’’ be substituted for ‘‘detailed’’ for this and other application
requirements, in order to reduce the length of FISA applications.
In general, the Committee’s bill approaches this by eliminating the
mandate for ‘‘detailed’’ descriptions, leaving it to the FISA Court
and the Government to work out the level of specificity needed by
the Court to perform its statutory responsibilities. With respect to
one item of information, ‘‘a statement of the means by which the
surveillance will be effected,’’ the bill modifies the requirement by
allowing for ‘‘a summary statement.’’
In aid of flexibility, Section 104 increases the number of individuals who may make FISA applications by allowing the President
to designate the Deputy Director of the Federal Bureau of Investigation (FBI) as one of those individuals. This should enable the
Government to move more expeditiously to obtain certifications
when the Director of the FBI is away from Washington or otherwise unavailable.
Subsection (b) of section 104 is eliminated as obsolete in light of
current applications. The Director of the Central Intelligence Agency is added to the list of officials who may make a written request
to the Attorney General to personally review a FISA application as

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the head of the CIA had this authority prior to the establishment
of the Office of the Director of National Intelligence.
Section 105. Issuance of orders under Section 105 of FISA
Section 105 strikes from Section 105 of FISA several unnecessary
or obsolete provisions. Section 105 strikes subsection (c)(1)(F) of
Section 105 of FISA which requires minimization procedures applicable to each surveillance device employed because Section
105(c)(2)(A) requires each order approving electronic surveillance to
direct the minimization procedures to be followed.
Subsection 6 reorganizes, in more readable form, the emergency
surveillance provision of Section 105(f), now redesignated Section
105(e), with a substantive change of extending from 3 to 7 days the
time by which the Attorney General must obtain a court order after
authorizing an emergency surveillance. The purpose of the change
is to help make emergency authority a more practical tool while
keeping it within the parameters of FISA.
Subsection 7 adds a new paragraph to Section 105 of FISA to require the FISA Court, on the Government’s request, when granting
an application for electronic surveillance, to authorize at the same
time the installation and use of pen registers and trap and trace
devices. This will save the paperwork that had been involved in
making two applications.

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Section 106. Use of information under Section 106 of FISA
Section 106 amends subsection 106(i) of FISA with regard to the
limitations on the use of unintentionally acquired information. Currently, subsection 106(i) provides that unintentionally acquired
radio communication between persons located in the United States
must be destroyed unless the Attorney General determines that the
contents of the communications indicates a threat of death or serious bodily harm to any person. Section 106 amends subsection
106(i) by making it technology neutral on the principle that the
same rule for the use of information indicating threats of death or
serious harm should apply no matter how the communication is
transmitted.
Section 107. Amendments for physical searches
Section 107 makes changes to Title III of FISA: changing applications and orders for physical searches to correspond to changes in
Sections 104 and 105 on reduction of some application paperwork;
providing the FBI with administrative flexibility in enabling its
Deputy Director to be a certifying officer; and extending the time,
from 3 days to 7 days, for obtaining a court order after authorization of an emergency search.
Subsection 303(a)(4)(C)—which will be redesignated subsection
303(a)(3)(C)—requires that each application for physical search authority state the applicant’s belief that the property is ‘‘owned,
used, possessed by, or is in transmit to or from’’ a foreign power
or agent of one. In order to provide needed flexibility and to make
the provision consistent with electronic surveillance provisions,
subsection 107(a)(1)(D) of the bill now being reported allows the
FBI to apply for authority to search property that also is ‘‘about to
be’’ owned, used, or possessed by a foreign power or agent of one,
or in transit to or from one.

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Section 108. Amendments for emergency pen registers and trap and
trace devices
Section 108 amends Section 403 of FISA to extend from 2 days
to 7 days the time for obtaining a court order after an emergency
installation of a pen register or trap and trace device. This change
harmonizes among FISA’s provisions for electronic surveillance,
search, and pen register/trap and trace authority the time requirements that follow the Attorney General’s decision to take emergency action.
Section 109. Foreign Intelligence Surveillance Court
Section 109 contains three amendments to Section 103 of FISA,
which establishes the FISA Court and the Foreign Intelligence Surveillance Court of Review.
Subsection 109(a) amends Section 103 to provide that judges on
the FISA Court shall be drawn from ‘‘at least seven’’ of the United
States judicial circuits. The current requirement—that the eleven
judges be drawn from seven judicial circuits (with the number appearing to be a ceiling rather than a floor)—has proven unnecessarily restrictive or complicated for the designation of the judges to
the FISA Court.
Subsection 109(b) amends Section 103 to allow the FISA Court
to hold a hearing or rehearing of a matter en banc, that is by all
the judges who constitute the FISA Court sitting together. The
court may determine to do this on its own initiative, at the request
of the Government in any proceeding under FISA, or at the request
of a party in the few proceedings in which a private entity or person may be a party, i.e., challenges to document production orders
under Title V, or proceedings on the legality or enforcement of directives to electronic communication service providers under Title
VII.
Under the section 109(b) amendment, en banc review may be ordered by a majority of the judges who constitute the FISA Court
upon a determination that it is necessary to secure or maintain
uniformity of the court’s decisions or that a particular proceeding
involves a question of exceptional importance. It is the intent of the
Committee that en banc proceedings should be rare and in the interest of the general objective of fostering expeditious consideration
of matters before the FISA Court.
Subsection 109(c) provides authority for the entry of stays, or the
entry of orders modifying orders entered by the FISA Court or the
Court of Review, pending appeal or review in the Supreme Court.
This authority is supplemental to, and does not supersede, the specific provision in section 703(i)(6)(B) that acquisitions under Title
VII may continue during the pendency of any rehearing en banc
and appeal to the Court of Review.

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Section 110. Technical and conforming amendments
This section conforms several provisions of Section 103(e) of FISA
in light of the repeal of the Protect America Act and the enactment
on the new Title VII.

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TITLE II. PROTECTIONS FOR ELECTRONIC
COMMUNICATION SERVICE PROVIDERS
This title contains four substantive sections. Sections 201 and
202 address liability relief for electronic communication service providers who have been alleged in various civil actions to have assisted the U.S. Government between September 11, 2001, and January 17, 2007, when the Attorney General announced the termination of the Terrorist Surveillance Program. Relating as they do
to a particular past matter, these sections are not made a permanent part of FISA. Sections 203 and 204 will enact provisions of a
new Title VIII of FISA. They are intended to be permanent provisions for implementing statutory defenses for electronic communication service providers and others who assist the Government in
accordance with precise, existing legal requirements, and for providing for federal preemption of state investigations.

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Section 201. Definitions
Section 201 establishes definitions for Section 202. Several are of
particular importance.
The term ‘‘assistance’’ is defined to mean the provision of, or the
provision of access to, information, facilities, or another form of assistance. The word ‘‘information’’ is itself described in a parenthetical to include communication contents, communication records, or
other information relating to a customer or communications. ‘‘Contents’’ is defined by reference to its meaning in Title I of FISA. By
that reference, it includes any information concerning the identity
of the parties to a communication or the existence, substance, purport, or meaning of it.
The term ‘‘covered civil action’’ has two key elements. It is defined as a civil action filed in a federal or state court which (1) alleges that an electronic communication service provider furnished
assistance to an element of the intelligence community and (2)
seeks monetary or other relief from the electronic communication
service provider related to the provision of the assistance. Both elements must be present for the lawsuit to be a covered civil action.
Section 202. Limitations on civil actions for electronic communication service providers
Section 202 provides that, notwithstanding any other provision of
law, a covered civil action shall not lie or be maintained in a federal or state court and shall promptly be dismissed if the Attorney
General makes a certification to the court that sets forth the elements required by Section 202.
First, the Attorney General must certify that the assistance alleged to have been provided by the electronic communication service provider was in connection with an intelligence activity involving communications that was (1) authorized by the President between September 11, 2001 and January 17, 2007 and (2) designed
to detect or prevent a terrorist attack or preparations for one
against the United States.
Second, the Attorney General must also certify that the assistance was described in a written request or directive from the Attorney General or the head (or deputy to the head) of an element of
the intelligence community to the electronic communication service

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provider indicating that the activity was (1) authorized by the
President and (2) determined to be lawful.
Alternatively, the Attorney General may certify that the electronic communication service provider did not provide the alleged
assistance.
The Attorney General’s certification is subject to judicial review
for abuse of discretion.
If the Attorney General files a declaration that disclosure of a
certification would harm national security, the court shall review
the declaration in camera and ex parte, which means with only the
Government present. A public order following that review shall not
disclose whether the certification was based on a written request
or directive to the electronic communication service provider for assistance or on the ground that the electronic communication service
provider furnished no assistance. The purpose of this requirement
is to protect the classified national security information involved in
the identification of providers who assist the Government.

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Section 203. Procedures for implementing statutory defenses
Section 203 adds two sections of a new Title VIII of FISA.
Section 801 provides for definitions. One, the definition of ‘‘assistance,’’ is the same as in Section 201. Another, a definition of ‘‘person’’ (the universe of those protected by Section 802) is necessarily
broader than only the definition of electronic communication service provider. This is so because Title VIII applies to all who may
be ordered to provide assistance under FISA, such as custodians of
records who may be directed to produce records by the FISA Court
under Title V of FISA or landlords who may be required to provide
access under Title I or III of FISA, not just to electronic communication service providers.
Section 802 establishes procedures for implementing statutory
defenses. Notwithstanding any other provision of law, no civil action may lie or be maintained in a federal or state court for assistance to an element of the intelligence community, and shall be
promptly dismissed, if the Attorney General makes a certification
to the court. The certification must state either that the assistance
was not provided or if it was furnished, that it was provided pursuant to a specific existing statutory requirement. The underlying
statutory requirements are themselves specifically stated in Section
802: an order of the FISA Court directing assistance, a certification
in writing under sections 2511(2)(a)(ii)(B) or 2709(b) of Title 18, or
directives to electronic communication service providers under particular sections of FISA or the Protect America Act.
As under Section 202, the Attorney General’s certification is subject to judicial review for abuse of discretion. Also, if the Attorney
General files a declaration that disclosure of a certification would
harm national security, the court shall review it in camera and ex
parte. A public order shall not disclose whether the certification
was based on an order, certification, or directive, or on the ground
that the electronic communication service provider furnished no assistance.
Section 204. Preemption of state investigations
Section 204 adds a Section 803 to the new Title VIII. It addresses investigations that a number of state regulatory commissions

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have or might begin to investigate cooperation by state regulated
carriers with U.S. intelligence agencies. Section 803 preempts these
state investigations by prohibiting them and authorizing the
United States to bring suit to enforce the prohibition.
Section 205. Technical amendments
Section 205 amends the table of contents of the first section of
FISA.
TITLE III. OTHER PROVISIONS

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Section 301. Severability
Section 301 provides that if any provision of this Act or its application is held invalid, the validity of the remainder of the Act and
its application to other persons and circumstances are unaffected.
Section 302. Effective date; Repeal; Transition procedures
Subsection 302(a) provides that except as provided in the transition procedures, the amendments made by the Act shall take effect
immediately.
Subsection 302(b) provides for the repeal of the Protect America
Act, except (as provided in subsection 303(c)(1) in the transition
procedures) for the immunity established in that Act for the provision of assistance pursuant to a directive under that Act.
Subsection 303(c) establishes five transition procedures in addition to the continuation of immunity for assistance provided under
the Protect America Act.
Subsection 303(c)(2)(A) continues in effect orders issued under
FISA or under section 6(b) of the Protect America Act in effect on
the date of enactment on this new Act, and for their reauthorization under the provisions of FISA in effect on the day before the
Protect America Act, except for the exclusive means, reporting,
streamlining, and other amendments added by sections 102
through 109 of this new Act (which will be deemed to be part of
FISA for such purposes).
Subsection 303(c)(2)(B) provides that any order of the FISA
Court issued under Title VII in effect on December 31, 2013, the
sunset of Title VII, shall continue in effect until the date of the expiration of such order.
Subsection 303(c)(3)(A) provides that any authorizations or directives of the Attorney General and the Director of National Intelligence in effect on the date of the enactment of this Act issued
pursuant to the Protect America Act or any amendment made by
that Act shall remain in effect until the date of the expiration of
the authorization or directive, and, except as provided by subsection 303(c)(4) of this Act, any acquisition pursuant to such authorization or directive shall be deemed not to be electronic surveillance as that term is defined in 101(f) of FISA, as construed in accordance with section 105A. However, subsection 303(c)(4) establishes that information acquired from an authorization conducted
under the Protect America Act shall be deemed to be information
acquired from an electronic surveillance pursuant to Title I of FISA
for purposes of section 106 of that Act, except for purposes of subsection (j) of such section.

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Subsection 303(c)(3)(B) provides similar treatment for any authorizations or directives issued pursuant to this Act in effect on
December 31, 2013.
Subsection 303(c)( 5) enables the Government to continue to obtain electronic surveillance orders under Title I as it existed the
day before the Protect America Act (except as amended by the exclusive means, reporting, streamlining, and other amendments
added by sections 102 through 109 of this Act). In other words, notwithstanding the amendments made by the Protect America Act
and this new Act to clarify or limit the definition of electronic surveillance and establish a new procedure (now to be in Title VII) for
targeting persons reasonably believed to be outside the United
States, the Government may continue to use Title I of FISA as if
the Protect America Act and the enactment of the new Title VII
had never occurred.
COMMITTEE ACTION
VOTE TO REPORT THE COMMITTEE BILL

On October 18, 2007, a quorum for reporting being present, the
Committee voted to report the bill favorably, by a vote of 13 ayes
and 2 noes. The votes in person or by proxy were as follows: Chairman Rockefeller—aye; Senator Feinstein—aye; Senator Wyden—
no; Senator Bayh—aye; Senator Mikulski—aye; Senator Feingold—
no; Senator Nelson—aye; Senator Whitehouse—aye; Vice Chairman
Bond—aye; Senator Warner—aye; Senator Hagel—aye; Senator
Chambliss—aye; Senator Hatch—aye; Senator Snowe—aye; Senator Burr—aye.

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VOTES ON AMENDMENTS TO COMMITTEE BILL AND THIS REPORT

On October 18, 2007, the Committee rejected an amendment offered by Mr. Nelson to strike Title II, entitled ‘‘Protections for Electronic Communications Service Providers,’’ from the bill, by a vote
of 3 ayes and 12 noes. The votes on the amendment in person or
by proxy were as follows: Chairman Rockefeller—no; Senator Feinstein—no; Senator Wyden—aye; Senator Bayh—no; Senator Mikulski—no; Senator Feingold—aye; Senator Nelson—aye; Senator
Whitehouse—no; Vice Chairman Bond—no; Senator Warner—no;
Senator Hagel—no; Senator Chambliss—no; Senator Hatch—no;
Senator Snowe—no; Senator Burr—no.
On October 18, 2007, the Committee agreed to an amendment offered by Senator Feingold and Senator Wyden to require additional
oversight activities by the Inspectors General of the Department of
Justice and the intelligence community and the provision of additional information in semi-annual reports to the Congress, by a
vote of 8 ayes to 7 noes. The votes on the amendment in person
or by proxy were as follows: Chairman Rockefeller—no; Senator
Feinstein—aye; Senator Wyden—aye; Senator Bayh—aye; Senator
Mikulski—no; Senator Feingold—aye; Senator Nelson—aye; Senator Whitehouse—aye; Vice Chairman Bond—no; Senator Warner—no; Senator Hagel—aye; Senator Chambliss—no; Senator
Hatch—no; Senator Snowe—aye; Senator Burr—no.
On October 18, 2007, the Committee agreed to an amendment offered by Senator Wyden, Senator Feingold and Senator Whitehouse
to amend the provisions of the bill governing the targeting of U.S.

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persons overseas, by a vote of 9 ayes to 6 noes. The votes on the
amendment in person or by proxy were as follows: Chairman
Rockefeller—no; Senator Feinstein—aye; Senator Wyden—aye;
Senator Bayh—aye; Senator Mikulski—aye; Senator Feingold—aye;
Senator Nelson—aye; Senator Whitehouse—aye; Vice Chairman
Bond—no; Senator Warner—no; Senator Hagel—aye; Senator
Chambliss—no; Senator Hatch—no; Senator Snowe—aye; Senator
Burr—no.
On October 18, 2007, by unanimous consent, the Committee
agreed to accept an amendment offered by Senator Feingold concerning the submittal to Congress of certain FISA court orders, as
modified by the text of a similar provision of the Intelligence Authorization Act for Fiscal Year 2008 approved by the Senate.
On October 18, 2007, the Committee rejected an amendment offered by Senator Feingold on minimization procedures, the dissemination of foreign intelligence information, and minimization procedures compliance reviews by a vote of 4 ayes to 11 noes. The votes
on the amendment in person or by proxy were as follows: Chairman Rockefeller—no; Senator Feinstein—aye; Senator Wyden—
aye; Senator Bayh—no; Senator Mikulski—no; Senator Feingold—
aye; Senator Nelson—no; Senator Whitehouse—aye; Vice Chairman
Bond—no; Senator Warner—no; Senator Hagel—no; Senator
Chambliss—no; Senator Hatch—no; Senator Snowe—no; Senator
Burr—no.
On October 18, 2007, the Committee rejected an amendment offered by Senator Feingold to change the date applicable to the sunset of the bill from December 31, 2013 to December 31, 2009, by
a vote of 3 ayes to 12 noes. The votes on the amendment in person
or by proxy were as follows: Chairman Rockefeller—no; Senator
Feinstein—no; Senator Wyden—aye; Senator Bayh—no; Senator
Mikulski—no; Senator Feingold—aye; Senator Nelson—no; Senator
Whitehouse—aye; Vice Chairman Bond—no; Senator Warner—no;
Senator Hagel—no; Senator Chambliss—no; Senator Hatch—no;
Senator Snowe—no; Senator Burr—no.
On October 18, 2007, the Committee rejected an amendment offered by Senator Feingold to limit the use of U.S. information obtained through targeting procedures that the FISA Court determines are not reasonably designed to target persons reasonably believed to be overseas, by a vote of 5 ayes to 10 noes. The votes on
the amendment in person or by proxy were as follows: Chairman
Rockefeller—no; Senator Feinstein—aye; Senator Wyden—aye;
Senator Bayh—no; Senator Mikulski—no; Senator Feingold—aye;
Senator Nelson—no; Senator Whitehouse—aye; Vice Chairman
Bond—no; Senator Warner—no; Senator Hagel—aye; Senator
Chambliss—no; Senator Hatch—no; Senator Snowe—no; Senator
Burr—no.

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ESTIMATE

OF

COSTS

Pursuant to paragraph 11(a)(3) of rule XXVI of the Standing
Rules of the Senate, the Committee deems it impractical to include
an estimate of the costs incurred in carrying out the provisions of
this report due to the classified nature of the operations conducted
pursuant to this legislation. On October 26, 2007, the Committee
transmitted this bill to the Congressional Budget Office and re-

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quested it to conduct an estimate of the costs incurred in carrying
out its provisions, to the extent not involving classified matters.
EVALUATION

OF

REGULATORY IMPACT

In accordance with paragraph 11(b)(2) of rule XXVI of the Standing Rules of the Senate, the Committee deems it impractical to
evaluate in this report the regulatory impact of provisions of this
bill due to the classified nature of the operations conducted pursuant to this legislation.
CHANGES

IN

EXISTING LAWS

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In the opinion of the Committee, it is necessary to dispense with
the requirements of paragraph 12 of rule XXVI of the Standing
Rules of the Senate in order to expedite the business of the Senate.

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ADDITIONAL VIEWS OF CHAIRMAN ROCKEFELLER
President Bush issued a secret order after September 11th, 2001,
authorizing the Intelligence Community to collect without a court
order phone and email communications going into and out of the
United States where there were reasonable grounds to believe that
one party was a member of a terrorist organization.
The expressed purpose of the President’s order was to collect intelligence that might help identify terrorists and disrupt their plots
before they could be carried out. The President’s order, however,
also prevented both the judicial and legislative branches of government from carrying out statutorily required oversight of electronic
surveillance programs.
The President had a chance to work with Congress in the aftermath of 9/11 to craft a balanced revision to the Foreign Intelligence
Surveillance Act (FISA) that would have eliminated the archaic
hurdles of targeting foreign agents that had evolved over time
while maintaining the essential role the judiciary performs in ensuring the constitutional privacy rights of Americans are not violated in the process.
The President squandered the chance at a critical moment in our
Nation’s history to unify our efforts in combating the threat of terrorism and instead chose an imperious, go-it-alone approach to governance. In doing so, the Bush Administration sowed the seeds of
the program’s eventual demise and created a statutory turmoil that
Congress is now attempting to resolve.
The President’s decision to circumvent the Foreign Intelligence
Surveillance Court in carrying out the broad electronic surveillance
program and to limit knowledge of the program’s existence to only
a handful of congressional officials was misguided and undermined
the legitimacy and effectiveness of the program.
Ultimately, the Administration was forced to seek and obtain in
January 2007 court approval for the collection of electronic communications previously carried out without an order. Efforts by the
four congressional oversight committees to fully understand the
surveillance program’s scope, legal basis, and operational effectiveness have been continually frustrated over many years by an impenetrable cloak of secrecy and a Bush Administration mantra that
falsely equates congressional oversight as anathema to national security.
Even now, six years after the warrantless surveillance program
was initiated, the Administration continues to withhold from Congress without justification the documents and information it needs
to have a full accounting of what happened under the program. The
Administration’s unwillingness to provide a complete disclosure of
these facts is short-sighted and untenable.
Only after the program was disclosed publicly nearly two years
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tire membership of the Senate and House intelligence committees.
At first, the briefings provided were not complete or accurate representations of the program’s historical and contemporaneous
scope. Glossed over in these delayed briefings as well were the
legal concerns within the Administration about the program’s operations. As this and other relevant information was being withheld
from the Committee, high-ranking officials of the Bush Administration were selectively declassifying and releasing information about
the program and falsely assuring the American people that no concerns about the program’s legality had been voiced within the Administration.
The Committee will not be dissuaded from completing its review
of the President’s program. In addition, the reluctance on the part
of the Bush Administration to trust and cooperate with Congress
unnecessarily alienates those legislators in both parties who wish
to work to make our laws stronger and our intelligence capabilities
directed at terrorists more robust.
Despite the Bush Administration’s distrust of Congress and its
inherent resistance to the concept of accountability, the Committee
recognized early this year the need to undertake a careful and deliberate review of intelligence collection authorities embodied in the
1978 FISA law.
My goal in undertaking this effort was for the Committee to
produce a bipartisan bill that would strengthen our national security, protect the civil liberties and privacy rights of all Americans,
and ensure that the unchecked wiretapping policies of the Bush
Administration are a thing of the past. The Committee has reported legislation that meets this goal.
The bill, passed on a 13–2 vote, adds the necessary and appropriate court and congressional oversight of surveillance activities
that is absent in the flawed Protect America Act hastily passed and
signed into law in August. Furthermore, the Committee bill requires that Americans located overseas cannot be targeted for surveillance without court approval, a notable privacy protection not
currently in the law.
The bill also includes a narrowly-focused liability provision that
protects telecommunications companies from being sued for alleged
participation in the surveillance program from 9/11 until it was
placed under FISC authorization in January of this year. This immunity provision is not the broad and vague immunity sought by
the Administration. The bill does not provide retrospective immunity for government officials for their actions or to companies outside the specified time frame. Nor does the bill extend to criminal
proceedings.
The Committee did not endorse the immunity provision lightly.
It was the informed judgment of the Committee after months in
which we carefully reviewed the facts in the matter. The Committee reached the conclusion that the immunity remedy was appropriate in this case after holding numerous hearings and briefings on the subject and conducting a thorough examination of the
letters sent by the U.S. Government to the telecommunications
companies.
The Committee determined that telecommunications companies
are often asked to be partners in law enforcement and national se-

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curity efforts, and that their participation was based on what they
believed to be lawful directives and representations of the President and the Attorney General.
The assistance of companies is invaluable in carrying out programs that provide for our national security and protect American
lives. It is important that this assistance continue and not be extinguished under a deluge of lawsuits.
I believe it is the Bush Administration, not the companies, who
must be accountable for the mishandling of the warrantless surveillance program. The internal debate within the Administration over
the program was kept from those who participated in the program
as well as from the Congress. The Committee, especially now that
it finally has access to the President’s authorization orders and Department of Justice opinions, will continue its examination of the
activities authorized by the President and report its findings.
Whatever the conclusions of the Committee may be, the burden of
any debate about the conduct of Government officials should not
fall on the telecommunications providers who responded to representations made to them after September 11th that the program
was legal and that their assistance was required to protect American lives.
JOHN D. ROCKEFELLER IV.

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ADDITIONAL VIEWS OF SENATORS BOND, CHAMBLISS,
HATCH, AND WARNER
In 1978, Congress passed and the President signed into law the
Foreign Intelligence Surveillance Act (FISA). The Act was the result of lengthy debates on the need to strike an appropriate balance
between protecting the civil liberties of Americans and using all
necessary and appropriate tools to defend the national security of
the United States.
FISA served us well for almost thirty years, and, in many ways,
it continues to do so. Due to changes in technology, however, FISA
began to inhibit vital foreign intelligence collection in ways that
Congress never intended. The impact on our intelligence agencies
and our troops on the battlefield was profound. Congress acted to
correct this problem through the Protect America Act (PAA), which
the President signed into law in August 2007. The PAA was enacted as a temporary solution to a serious legal problem that was
causing significant intelligence gaps. The PAA is not perfect, but
it has done the job it was intended to do. Because the PAA expires
in February 2008, it is imperative that Congress pass more permanent changes to FISA.
The FISA Amendments Act is a vitally important piece of legislation that makes long-term improvements and restores much of the
original intent of FISA: maintaining the requirement for Foreign
Intelligence Surveillance Court (FISC) approval for the electronic
surveillance of persons within the United States, while allowing
the acquisition of foreign communications without such approval.
In addition, the FISA Amendments Act adds new privacy protections for American citizens.
Chairman Rockefeller and I, along with the Director of National
Intelligence (DNI), the Department of Justice, and the members of
the Senate Intelligence Committee, worked closely together over
the past several months to produce this responsible, bipartisan legislation. All of the parties involved had to make significant compromises, but the result is a bill that protects Americans’ privacy
and civil liberties without unnecessarily hindering the ability of our
intelligence agencies to intercept the communications of terrorists
and other threats to our national security.
The Senate Intelligence Committee was in a unique position to
weigh and assess the many highly classified aspects of our foreign
intelligence surveillance operations and to discuss and debate those
sensitive issues before we wrote this legislation. The Committee
was also entrusted with special access to sensitive national security
documents related to this legislation per the Committee’s unique
jurisdiction over sensitive matters. The resulting Committee bill
will work for the Intelligence Community, will work for national security, and will work to protect Americans’ privacy interests.
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The bill allows the Intelligence Community, through a joint Attorney General and DNI certification, to target the communications
of foreign targets outside the U.S. without prior court approval.
This provides the speed and agility the Intelligence Community
needs and keeps foreign intelligence targets outside of the direct
purview of the FISA court, which is what Congress intended when
it drafted the FISA bill in 1978. This ensures that foreign collection
can continue and that the FISA Court is not bogged down with reviewing numerous foreign collections outside of its purview.
The FISA Amendments Act also ensures the protection of Americans’ civil liberties by providing that acquisition may be conducted
only in accordance with targeting and minimization procedures
adopted by the Attorney General and reviewed by the FISC. Targeting must be consistent with the Fourth Amendment and reverse-targeting of Americans is specifically prohibited. There are
also several provisions in the bill that enhance oversight by Congress, the Attorney General, the DNI, and Inspectors General.
One of the most important provisions in this bill is retroactive liability protection for those telecommunication carriers alleged to
have assisted the government with the President’s Terrorist Surveillance Program (TSP). We believe, without any doubt, that the
President properly used his authority under Article II of the Constitution to protect this country in the wake of the 9/11 terrorist
attacks. We believe that the TSP was legal, necessary, and most
likely prevented another terrorist attack against the homeland.
Those who constantly harp on the misleading assertion that the
TSP was illegal conveniently ignore the federal case law that recognizes the President’s Article II authority to engage in warrantless
surveillance in the context of gathering foreign intelligence. Instead, they assert that the TSP violated FISA. The last time we
checked, the Constitution always trumps any statute passed by
Congress, including FISA. Even at his lowest ebb, the President
still possesses significant authority vis-a-vis Congress in the area
of intercepting enemy communications.
I have reviewed the Department of Justice legal opinions and the
Presidential authorizations which critics of the TSP had declared
would hold the smoking gun that the program was illegal. I have
found no smoking gun, and those of us who have seen these documents have found nothing in them that would support the conclusion that the government’s actions were illegal. While others may
disagree, there should be no doubt that those carriers who are alleged to have participated in the program acted legally and believed that what they were doing was patriotic and in the best interest of the country. These companies deserve to be protected from
these costly and frivolous lawsuits. Those who ask why the companies need such protection if they did nothing illegal are missing the
fundamental point that the government’s invocation of the states
secrets privilege precludes these companies from asserting valid defenses and providing the court with any factual evidence confirming or denying their involvement in the program. As a result,
these companies cannot defend themselves even if they never participated in the program.
Some have suggested that indemnification of these companies is
a better solution. In reality, this is not a suitable fix for the compa-

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nies, the American taxpayer, or our Intelligence Community. First,
lawsuits can be extremely costly to a company in terms of damage
to business reputation and stock prices even if that company is ultimately found not liable or if the government pays the legal bills.
Second, the American taxpayers have a large enough tax burden
and should not be forced to shoulder an additional burden to finance these frivolous lawsuits, filed by parties with no standing or
actual damages. We should not use taxpayer funds to line the pockets of trial lawyers seeking to graymail the government into settling these lawsuits to avoid the public disclosure of classified information. Third, the irresponsible and criminal leaks of the TSP and
other intelligence programs have been costly to our Intelligence
Community. Continuing to litigate these cases against the carriers
will risk unnecessary further disclosure of our intelligence sources
and methods.
Our enemies are not stupid. They pay attention to our laws and
legal proceedings, sometimes better than we do. We have no doubt
that they have followed each disclosure or leak of intelligence information with interest. If a person believes that the government has
violated his rights, then that individual should pursue legal action
against the government. Anyone who wants to pursue legal claims
against the government is free to do so under this legislation, but,
if we allow these companies to suffer for helping us in the war on
terror, could we really blame a company for not wanting to help the
next time it is called upon to assist in defending our country?
Unfortunately, the bill contains one very problematic provision,
added by amendment, which, if not modified, will make it difficult
to get our bill out of the Senate and may make it impossible to get
the support of the President who must ultimately sign the bill. This
provision prohibits surveillance of U.S. persons who are overseas
without a court order. Those in favor of this amendment argue that
we should not be conducting surveillance or searches of Americans
without a court order. The Fourth Amendment, however, does not
always require a warrant. Rather, warrantless surveillances and
searches are routinely upheld by courts if they satisfy the reasonableness requirement of the Fourth Amendment. Thus, in the
criminal law context, courts have recognized that no warrant is required to conduct a border search, an inventory search, consensual
monitoring, certain vehicle searches, etc.
Similarly, under Executive Order 12333, section 2.5, signed by
President Reagan in 1981, the Attorney General may authorize
surveillances or searches of U.S. persons inside and outside the
United States upon a finding of probable cause to believe that that
person is a foreign power or an agent of a foreign power. Section
2.5 authority has worked well and without any known abuses. Congress chose in 1978 to leave this authority outside of FISA due to
the court’s lack of jurisdiction overseas and other complicating intelligence matters. Nevertheless, we support the intent of the
amendment: any time a U.S. person is the target of surveillance,
the government should get an appropriate judicial ruling. However,
since significant technical and legal problems with the provision’s
language have unintended consequences that would cause the Intelligence Community to lose valuable intelligence on certain U.S.
persons who are spying for a foreign power or supporting terrorism,

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we remain hopeful that we will be able to reach a compromise on
this issue when we get to the floor.
As this U.S. person surveillance provision is discussed in the
weeks ahead, I want to make sure that all Americans are clear
about what individuals would be subject to this provision. The Intelligence Community is not targeting American businessmen traveling overseas on a trip or students studying abroad. It is not targeting ordinary tourists or our soldiers. Instead, they are targeting
those few individuals on whom the Intelligence Community seeks
to gather foreign intelligence information only after the Attorney
General has found probable cause that these U.S. persons are foreign powers or agents of a foreign power. The men and women of
our Intelligence Community are honorable people who have taken
an oath to protect and defend the Constitution of the United
States, and they understand their legal and operational boundaries. It is unfortunate that some are using scare tactics to confuse
Americans into thinking that they might be monitored by the U.S.
government when traveling overseas. Unless they are spying for a
foreign country or supporting terrorism, our government has no foreign intelligence interest in them. Frankly, despite budget increases since 9/11, our Intelligence Community has enough work on
its hands tracking terrorists and spies intent on harming us without wasting precious time and resources surveilling innocent Americans.
CHRISTOPHER S. BOND.
SAXBY CHAMBLISS.
ORRIN G. HATCH.
JOHN WARNER.

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ADDITIONAL VIEWS OF SAXBY CHAMBLISS
When Congress first considered enacting the Foreign Intelligence
Surveillance Act (FISA) it was after some of the most serious intrusions into Americans’ lives by the U.S. Intelligence Community
were exposed by the Congress. Since 1978, Congress has provided
rigorous oversight of our Intelligence Community and enacted valuable legislation, such as FISA, in order to guide our collectors. Congress, and the Intelligence Community, have taken measures to ensure that U.S. citizens are protected from unnecessary government
intrusions into their private lives while at the same time balancing
the government’s need to collect vital intelligence necessary to
ward off terrorist attacks or the spies of our enemies. The post 9/
11 environment in which Congress must now consider amending
FISA is much different from the Cold War era. The threat to the
homeland is real and our enemies communicate through more sophisticated means and in a more security conscious manner than
in 1978. These evolving threats must be considered by Congress
during the debate on FISA modernization. The FISA Amendments
Act of 2007 provides much needed updates to FISA, but I am concerned that Congress may not reach this delicate balance without
further amending the bill.
The Chairman and Vice Chairman introduced a carefully crafted,
bi-partisan piece of legislation. Although it was not a perfect bill,
I was willing to forego offering amendments to support the bi-partisan process and provide our Intelligence Community with the
minimum requirements it needs in an environment with rapidly
changing technology. I believe that the bill which was ultimately
adopted by the Committee, and with my support, contains troubling language which should be altered before enactment. I had
filed three amendments prior to the Committee’s consideration of
the FISA Amendments Act of 2007. Although I did not offer any
of them, I believe these issues should be addressed by Congress.
My first amendment would change the definition of ‘‘electronic
surveillance’’ to make it target-oriented and technology neutral.
Rather than carving out an exception to ‘‘electronic surveillance’’
for communications where the target is reasonably believed to be
overseas, I believe it would be prudent for the Committee to craft
a new definition which focuses on the core question of who is the
subject of the surveillance rather than on how or where the communication is intercepted.
When FISA was enacted in 1978, Congress used language that
was technology-dependent and related specifically to the telecommunications systems that existed at that time (such as ‘‘wire
and radio communications’’). As a result of revolutions in communications technology since 1978, and not any considered judgment
of Congress, the current definition of ‘‘electronic surveillance’’
sweeps in surveillance activities that Congress intended to exclude
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from FISA’s scope. For example, in 1978, most foreign communications went through the air rather than over a wire and most domestic communications were on a wire. Today, most domestic communications, such as cell phone communications, travel through
the air and most international communications travel over a wire.
The FISA Amendments Act of 2007 seeks to fix this major problem
identified by the Director of National Intelligence as a result from
this outdated definition, but does so by excluding, or carving out,
foreign to foreign communications from the definition of ‘‘electronic
surveillance’’ rather than fixing the underlying problem. Although
the problem of foreign targeting may be fixed, it is difficult to foresee what additional problems the current technology-based definition may cause in the future. I believe that amending the definition
of ‘‘electronic surveillance’’ is the best and most comprehensive solution.
My second amendment would have been a minor technical
change deleting the definition of ‘‘wire communication.’’ If the definition of ‘‘electronic surveillance’’ is changed, there would no longer
be a need to have a definition for ‘‘wire communication’’ since the
statute would be technology neutral.
My final amendment sought to strike a provision in the FISA
Amendments Act which would require the Foreign Intelligence Surveillance Court (FISC) to review the Attorney General’s probable
cause determination when the target of surveillance is a known
U.S. person overseas and there is probable cause to determine that
the individual is a foreign power, agent of a foreign power, or an
officer or employee of a foreign power. Instead, Senator Wyden introduced, and the Committee adopted, an amendment requiring
that any time a U.S. person is the target of surveillance, regardless
of where the collection occurs, the Attorney General must seek
FISC approval for that collection.
I am concerned that Senator Wyden’s amendment is an attempt
by Congress to micromanage the Intelligence Community. Currently, under Executive Order 12333, Section 2.5, the Attorney
General may authorize the targeting of a U.S. person overseas
upon finding probable cause to believe that the individual is a foreign power or agent of a foreign power. Senator Wyden’s amendment seeks to prevent the Intelligence Community from acting
quickly and with discretion in a process which has worked well to
protect U.S. persons for almost thirty years. The Intelligence Community will now be required to obtain authorization from the FISC
prior to conducting surveillance against terrorists or spies overseas
who assist foreign governments merely because they are United
States persons. It is my belief that the Intelligence Community has
demonstrated to Congress how judicious, selective and careful they
have been when it comes to protecting the very small number of
U.S. citizens this applies to and does not necessarily need the FISC
to approve their actions every step along the way.
The Congress considered legislative proposals throughout two
Congresses prior to enacting FISA in 1978 and explicitly did not
address the issue of U.S. persons overseas because they felt it demanded further consideration. I am concerned that Congress is acting hastily on this subject and moving away from the original intent of FISA. Allowing FISC judges to review the President’s con-

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stitutional powers to conduct foreign policy and defend the nation
is a gross expansion of judicial power from the 1978 FISA law,
which was intended to apply solely to domestic surveillance of U.S.
persons. Instead of granting oversight of the Executive Branch to
judges, Congress should exercise due diligence and reconsider these
points after careful examination of the current authorities governing surveillance of U.S. persons overseas. Judges are not elected
officials held accountable to the American people like the President
and the Congress and it should not be within their jurisdiction to
provide after the fact approval or disapproval to the procedures the
Executive believes are necessary for our national security.
Finally, I am pleased to see the Committee take responsible action by providing our telecommunications carriers with liability relief. The FISA Amendments Act of 2007 provides that no civil actions may be brought against electronic communication providers if
the Attorney General certifies: (1) the assistance alleged was in
connection with a communication intelligence activity that was authorized by the President between September 11, 2001 and January 17, 2007, designed to detect or prevent a terrorist attack
against the U.S. and described in writing to the provider that it
was authorized by the President and lawful; or (2) the communication provider did not provide any of the alleged assistance. It also
removes any claims from state courts to the Federal court and preempts any state from conducting an investigation into an electronic
communication provider’s alleged assistance to the government.
The government often needs assistance from the private sector in
order to protect our national security and in return they should be
able to rely on the government’s assurances. America’s telecommunication carriers should not have to front heavy legal battles
shrouded in secrecy on the government’s behalf.
Overall, I support the efforts of the Chairman and Vice Chairman to draft bi-partisan legislation. Whatever form the legislation
takes before being presented to the President for his signature,
Congress should seek the Director of National Intelligence’s comments and advice in order to avoid any unintended consequences
from well-intentioned amendments. It is critical that Congress
enact FISA legislation, with the input of our core collectors, to ensure that our Intelligence Community has the tools and the legal
framework necessary to protect our country from terrorist attacks
and to collect vital foreign intelligence information.
SAXBY CHAMBLISS.

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ADDITIONAL VIEWS OF SENATORS FEINSTEIN, SNOWE,
AND HAGEL
Chairman Rockefeller and Vice Chairman Bond are to be commended for producing a bipartisan bill that the Director of National Intelligence and Department of Justice support. They and
their staff have worked together to produce this bill. It is a signal
accomplishment, and we commend them.
We believe this legislation is a strong bipartisan bill that will
next be reviewed by the Senate Judiciary Committee. We hope that
the bill can be further improved, particularly with respect to the
issue of FISA’s exclusivity, as discussed below.
IMPROVEMENTS IN THIS LEGISLATION

The Committee’s bill makes necessary improvements to current
law, the Protect America Act that was enacted in August.
Notably, for the first time ever, this legislation would require
court review any time the Intelligence Community targets a U.S.
citizen for surveillance, regardless of location. Under present law
and regulation, the Attorney General can approve surveillance of
Americans outside of the country with no judicial review.
This legislation puts the central question before the FISA Court:
whether there is probable cause to believe that a U.S. person is an
agent of a foreign power. This is a determination that FISA Court
judges have made in thousands of instances since 1978, and one to
which it is well suited.
In addition, this bill:
• Greatly increases the role of the FISA Court in conducting
up-front review and approvals of the targeting and minimization of communications;
• Corrects the concern arising from the Protect America Act
that surveillance information could be used in an overly broad
manner. Instead, this bill uses FISA’s existing limitations on
use:
• Disseminated information must be minimized;
• Information can only be shared only for appropriate
intelligence and law enforcement purposes; and
• Inadvertently collected intelligence must be destroyed;
• ‘‘Streamlines’’ the FISA application and order process in
order to reduce the pending application backlog and the significant amount of time it takes to write and review an application. Specifically, the bill:
• Allows the government to present a summary, rather
than a full description, of how the surveillance will be effected and what intelligence is sought; and
• Extends the existing FISA ‘‘emergency period’’ from
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ducted under the Attorney General’s direction prior to a
Court order being obtained;
• Provides for strong internal and external oversight by:
• Requiring the Intelligence Community to conduct an
annual review of whether new surveillance authorities are
being properly applied;
• Requiring the Attorney General to provide detailed
semi-annual reports to the Senate and House Intelligence
and Judiciary committees concerning collections authorized in the bill—including instances of non-compliance;
and
• Authorizing the Inspectors General of the Department
of Justice and elements of the Intelligence Community to
conduct independent reviews of agency compliance with
the court-approved acquisition and minimization procedures.
• Clearly prohibits warrantless surveillance against persons
inside the United States.
Legislation amending the Foreign Intelligence Surveillance Act of
1978, and the Protect America Act that was passed in August of
this year, will only succeed if it is bipartisan. In this area, it is our
belief that any partisan bill will not pass.
That outcome is likely to result in one of two unacceptable options:
• A rushed process to extend the Protect America Act, which
contains fewer statutory protections of privacy rights than the
Committee’s bill, or
• A lapse in legislation, which will prevent the Intelligence
Community from conducting much-needed surveillance on nonUnited States citizens outside of the country.
Clearly, passing meaningful reforms should be a top priority of
the U.S. Congress.
EXCLUSIVITY OF FISA

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The legislation includes language on the exclusivity of FISA that
requires further examination. Section 102 of the Intelligence Committee bill states that the Foreign Intelligence Surveillance Act and
relevant portions of Title 18 of the U.S. Code are the ‘‘exclusive
means’’ by which ‘‘electronic surveillance’’ may be conducted.
The definition of the term ‘‘electronic surveillance,’’ however, was
written in 1978 and has been the subject of exemptions and limitations since then.
It is essential that the Committee determine whether there are
any intelligence techniques that fall within this legislation’s scope
for which the Executive Branch may not follow the bill’s procedures. This is a necessarily classified topic, but we intend to conduct careful review of these techniques before this legislation is enacted.
It is our view that the Foreign Intelligence Surveillance Act, as
amended, should be the only legal way of acquiring the communications of people inside the United States, and U.S. persons outside
the United States in certain circumstances, for foreign intelligence
purposes.

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There is a history to this provision that makes a strong congressional re-affirmation even more important.
The legislative history from when FISA was originally enacted in
1978 is quite clear. It states:
[d]espite any inherent power of the President to authorize warrantless electronic surveillance in the absence of
legislation, by this bill and chapter 119 of title 18, Congress will have legislated with regard to electronic surveillance in the United States, that legislation with its procedures and safeguards prohibit the President, notwithstanding any inherent powers, from violating the terms of
that legislation. (emphasis added)
The legislative history continued by describing the Supreme
Court’s decision in the Keith case, in which the Court ruled that
at that time, Congress hadn’t ruled in this field and ‘‘simply left
the presidential powers where it found them.’’ But at this point, the
legislative history turns. It said:
The Foreign Intelligence Surveillance Act, however, does
not simply leave Presidential powers where it finds them.
To the contrary, this bill would substitute a clear legislative authorization pursuant to statutory, not constitutional,
standards. (emphasis added)
This was the statement accompanying H.R. 7138 as it passed the
95th Congress. It is clear that Congress enacted the 1978 legislation with the specific intent that it would be the only authority
under which foreign intelligence could be obtained from electronic
surveillance.
It is also clear that President Carter was aware of this intent
when he signed the bill into law. President Carter’s signing statement noted that:
The bill requires, for the first time, a prior judicial warrant for all electronic surveillance for foreign intelligence
or counterintelligence purposes in the United States in
which communications of U.S. persons might be intercepted. It clarifies the Executive’s authority to gather foreign intelligence by electronic surveillance in the United
States. It will remove any doubt about the legality of those
surveillances which are conducted to protect our country
against espionage and international terrorism . . . . (emphasis in original)
This intent, and FISA practice for more than 20 years, was cast
in doubt after September 11, 2001. At that time, the Executive
Branch concluded that it was not bound by FISA’s procedures, and
proceeded with the Terrorist Surveillance Program (TSP) without
requesting amendments to FISA.
As explained in the Department of Justice’s 2006 White Paper on
the legality of the TSP, the Administration cited the Authorization
for the Use of Military Force (AUMF) against al Qaeda and its supporters as an alternative authority. The Department pointed to language in FISA that it was exclusive except as authorized by other
statute.

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Congress intended for the ‘‘other statute’’ to be the laws governing criminal wiretaps, not a broad and undefined exception.
We do not believe that the AUMF provided this authorization.
We have seen no evidence that Congress intended the AUMF to authorize a widespread effort to collect the content of Americans’
phone and email communications, nor does the AUMF refer to the
subject.
Furthermore, FISA already contained a provision that clearly
governed surveillance actions in a wartime situation—a 15–day authorization for warrantless surveillance following a declaration of
war. So this was not an uncontemplated question following September 11 and the passage of the AUMF.
More troubling, however, is the Administration’s claim that the
Constitution would not allow FISA to limit the President’s ability
to conduct surveillance and other activities covered by that legislation in any way he sees fit. The Department of Justice argues that
Congress has not, and cannot, so limit the Executive’s power.
For these reasons, we continue to believe that Congress must
write strong language to ensure that FISA is the exclusive means
that the Intelligence Community may intercept, analyze, and disseminate the phone and electronic communications of any American for intelligence purposes.
We will work to strengthen the exclusivity language as the bill
progresses.
Achieving the balance between necessary intelligence collection
and the protection of Americans’ privacy rights is perhaps nowhere
as difficult as in the areas surrounding FISA. It is not a field in
which partisan politics should play a part. Nor is it one where the
Congress and the President should be in conflict.
We thank again Chairman Rockefeller and Vice Chairman Bond
for their work on this legislation. It is a big step forward.
DIANNE FEINSTEIN.
OLYMPIA J. SNOWE.
CHUCK HAGEL.

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ADDITIONAL VIEWS OF SENATOR NELSON
I strongly support the efforts of Chairman Rockefeller and ViceChairman Bond to craft a compromise that a bipartisan majority
of the SSCI supported. This bill strikes the right balance, protecting Americans’ privacy while giving the government the tools
that it needs to stop terrorists.
During the committee’s mark-up of the bill, I offered an amendment that would have struck Title II from the bill. Title II provides
immunity to any telecommunications company that may have provided assistance to the government under the President’s
warrantless surveillance program between September 11, 2001 and
January 17, 2007.
I am sympathetic to the notion that companies may have acted
in good faith to provide the government with assistance during a
national security crisis, but I believe it’s premature to grant them
immunity. The committee received critical documents only 48 hours
before the vote. I believe we need more time to gain a full understanding of the President’s warrantless surveillance program before
deciding whether the companies should receive retroactive immunity.
I voted to support the bill because legislation that provides protections for Americans while enabling the government to get the information it needs to stop terrorists is necessary and immediate.
BILL NELSON.

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ADDITIONAL VIEWS OF SENATOR WHITEHOUSE
With this legislation, the Senate takes an important step forward
to repair damage the Bush Administration has done to the privacy
and security of innocent American citizens. The President’s
warrantless wiretapping program provoked dismay and outrage not
only in my home state of Rhode Island, but throughout the nation.
This outrage has continued largely unabated as the President has
delayed and circumscribed efforts by the American people’s representatives to determine what took place under the secret program. This legislation moves the Government toward a solution
that gives the law enforcement and intelligence communities the
resources they need to keep us secure, but also upholds the critical
balance of law and principle upon which that security depends.
I know such a solution exists. I saw it in action during my years
as a federal and state prosecutor. But rather than seek that common-sense solution, this President chose to trample on the rights
of the very people he was sworn to protect, and left millions of
Americans wondering whether they can trust their government.
In August, I voted against the Protect America Act, a flawed law
rushed through Congress under intense political pressure from the
Administration, because the law amended the Foreign Intelligence
Surveillance Act (FISA) in a way that did not adequately protect
the rights of American citizens who are caught up in warrantless
government surveillance. I voted for the new bill in the Senate Select Committee on Intelligence because it takes a significant step
away from the flawed August law and toward the protection of civil
liberties. It is a significant first step in the four-step process that
I hope will lead us to a bill that both protects Americans’ privacy
rights and strengthens our ability to conduct essential foreign intelligence surveillance.
Everyone agrees that United States intelligence agencies should
be able to wiretap foreign targets overseas without judicial authorization. The problem we are obliged to address, but failed to address adequately in the August law, emerges when surveillance
overseas implicates: (1) U.S. citizens who happen to be abroad; or
(2) U.S. citizens in America whose communications are intercepted
incidentally, for instance when they communicate with a surveilled
target.
There are simple touchstones for protecting Americans’ rights in
this context: the principles that guide domestic law enforcement
surveillance. When I served as a United States Attorney and as
Rhode Island Attorney General, I sought, obtained, and oversaw
wiretaps in gang, narcotics, and public corruption investigations.
Two fundamental principles prevailed. First, the government cannot target Americans for surveillance without the approval of a
judge. Second, surveilling agents are required by the court to ‘‘minimize’’ the surveillance if it is not relevant to the investigation.
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This helps protect innocent citizens who are not the target, but
who talk to the target.
I have worked closely with the Chairman and other members of
the Committee to strengthen protections for U.S. citizens in the
new bill, including by proposing and supporting a number of
amendments. The new bill ensures the involvement and oversight
of the Foreign Intelligence Surveillance Court when U.S. citizens
abroad are targeted. I cosponsored and strongly supported an
amendment, proposed by Senator Wyden, and approved by the
Committee, that requires the Government to obtain a traditional
warrant from the Foreign Intelligence Surveillance Court (FISC) if
the Government wants to collect, from a source within the United
States, against an American overseas. The amendment also requires that, in order to collect surveillance overseas on a U.S. citizen traveling or living overseas, the Government obtain a determination from the FISC that the targeted U.S. citizen is a foreign
power or the agent of a foreign power. Furthermore, the FISC must
issue an ex parte order approving this surveillance. These changes
are critical to ensuring that the new warrantless surveillance authority enacted under the Protect America Act does not allow the
Government to intrude inappropriately upon the privacy of U.S.
citizens. Nonetheless, the Administration has already signaled that
this amendment may create certain challenges that need to be resolved. If the Administration intends to propose an alternative, it
must preserve the Court’s role in determining whether there is
probable cause to believe the U.S. citizen is a foreign power or an
agent of a foreign power. U.S. citizens do not, and should not be
expected to, leave their privacy rights behind every time they leave
the United States.
In protecting the privacy of Americans while conducting surveillance, the critical element is judicial oversight. In the August law,
the FISC was authorized only to review the Government’s determination that its surveillance targets persons ‘‘reasonably believed
to be outside the United States’’—and to intervene only if the Government’s determination is ‘‘clearly erroneous.’’ In contrast, under
this bill, the FISC will need to approve both the ‘‘targeting’’ determination and the ‘‘minimization’’ procedures that are designed to
protect U.S. citizens in America whose communications are intercepted incidentally. This bill also rejects the unduly permissive
standard of review that the August law had imposed.
While these changes are positive and significant, there remains
important work to be done to improve the bill. The FISC should not
be required to approve the minimization procedures for warrantless
surveillance of Americans and then forced to ignore their implementation. I have drafted and introduced an amendment that
would clarify that the FISC has the same powers to review the
Government’s compliance with minimization procedures for
warrantless surveillance as it does with the minimization procedures used pursuant to traditional FISA warrants. This change is
not yet a part of the bill, but I will continue to press for the Court’s
clear authority to check on the implementation of these minimization procedures. U.S. citizens whose communications are incidentally intercepted should enjoy a two-stage protection: the minimization procedures themselves, and the salutary prospect of judicial

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review of compliance. Engaging more than one branch of government is a traditional protection in our American system of government. Here, those checks and balances can be exercised in a way
that is neither burdensome nor disruptive to intelligence-gathering
operations. As the bill continues to move through the legislative
process, I will seek to strengthen the protections for U.S. citizens.
Finally, Congress is seeking to revise FISA in light of a program
that was conducted outside its framework. As it acts, Congress
must leave no shadow of a doubt that the Foreign Intelligence Surveillance Act, as amended, is the exclusive means for authorizing
foreign intelligence surveillance. I will stand as a strong supporter
of Senator Feinstein’s efforts to prevent this Administration or future ones from acting outside this law.
SHELDON WHITEHOUSE.

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MINORITY VIEWS OF SENATORS FEINGOLD AND WYDEN
As strong opponents of the Protect America Act, we have been
very concerned about the vast new authorities granted under that
legislation, as well as the possibility that its vague language will
be interpreted by the executive branch to permit even broader surveillance than has already been acknowledged publicly. We support
the underlying purpose of FISA reform: to permit the government
to conduct surveillance of foreign targets, particularly terrorist suspects, as they communicate with other persons overseas, without
having to obtain a FISA court order. We believe that this purpose
can be achieved while protecting the rights and privacy of law-abiding Americans conducting international communications. We believe that the bill that passed the Senate Intelligence Committee
unfortunately falls short of that goal in some respects, and we are
also concerned that it also provides sweeping retroactive immunity
to those alleged to have cooperated with the President’s
warrantless wiretapping program. We were therefore disappointed
with the bill and voted against it. We look forward to the opportunity to debate further modifications to this bill as it passes
through the Judiciary Committee and onto the Senate floor.
We were pleased, however, that three amendments we offered
passed. One amendment, which we offered along with Senator
Whitehouse, ensures that whenever the government wants to target an American overseas, the FISA Court—and not just the Attorney General—must determine that there is probable cause that the
American is an agent of a foreign power. Americans’ rights should
not diminish when they cross the border, nor should the extent of
those rights be subject to the whim of the executive branch without
the checks and balances provided by the court.
Another amendment adopted by the Committee ensures that the
Department of Justice Inspector General and other Inspectors General have the information they need to review fully how the new
authorities are implemented. It also requires that the Administration provide Congress with additional information—including access to reports and documentation—so that Congress can assess
how the legislation is being used. For purposes of oversight and
possible reauthorization at the end of a sunset period, this information is critical. In addition, an amendment offered by Senator Feingold and accepted by the Committee ensures that any FISA Court
legal opinions related to the new authorities will be provided, in a
timely manner, to Congress.
Despite these improvements, the bill fails to protect the privacy
rights of Americans in critical areas addressed in other amendments we either offered or filed. One such amendment, filed by
Senator Feingold, would have permitted ongoing surveillance of
persons overseas, but directed that if the government knows that
certain communications involved persons in the United States,
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those communications with the U.S. would have to be sequestered
and would be accessible to government agents only with the approval of the FISA Court or in emergencies. This amendment
would grant the flexibility the administration has said it needs
while providing protection to law-abiding Americans making international calls. It also recognizes that, given the broad new authorities provided by the PAA and this new legislation, non-statutory,
classified minimization procedures do not provide the independent
review needed to protect the privacy of Americans. We were disappointed that the Committee rejected an amendment offered by
Senator Feingold that would have provided for stronger, more effective minimization procedures. The amendment would have limited
the types of U.S. person information that could be disseminated to
information necessary to protect against terrorism and other
threats to national security, ensured that the FISA Court has sufficient information to assess compliance with minimization procedures, and given the FISA Court the authority to review and enforce that compliance. This amendment was a limited alternative
to a FISA Court order requirement, and its defeat leaves in place
what we believe are inadequate mechanisms for protecting the privacy of Americans’ communications.
We are also concerned about the lack of incentives for the government to target only those persons who are overseas in the first
place. The bill improves upon the PAA by removing a ‘‘clearly erroneous’’ standard for FISA court review of the procedures the government uses to ensure that surveillance targets are reasonably
likely to be overseas. But there are no consequences to the government if the court determines that the government’s procedures are
not reasonably designed to target persons reasonably believed to be
overseas. The government cannot use those procedures going forward, but it can retain and share everything it learned through the
use of the unlawful procedures up until the point when the Court
rejected them. We therefore supported an amendment offered by
Senator Feingold that would have limited the use of U.S. person
information obtained through targeting procedures later rejected by
the court. The defeat of that amendment means that, even when
the court finds that the government’s procedures are targeting
Americans in the United States without a warrant, the government
can continue to use the information obtained through that surveillance however it sees fit. This loophole offers an invitation to
warrantless wiretapping.
Senator Wyden filed an amendment that would have limited the
scope of the authorities to foreign intelligence information related
to national security threats. The Administration’s stated purpose
for the PAA, and the purported emergency that drove the precipitous passage of that legislation, was the terrorist threat to the
United States. We strongly support providing the government the
authorities it needs to detect terrorists and other national security
threats and believe that this can be done while protecting the
rights and privacy interests of Americans. We do not believe, however, that broad new authorities related to any communications involving any foreign intelligence (a term that is very broadly defined) are justified, particularly in the absence of the kinds of over-

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sight and checks and balances needed to defend the rights of Americans and protect against abuses.
Another amendment we filed would have required that a court
order be obtained when a ‘‘significant purpose’’ of the wiretapping
is to obtain information on an American talking to a foreign target.
The Director of National Intelligence has stated publicly that ‘‘reverse targeting’’ is a violation of the 4th Amendment to the United
States Constitution and subject to criminal prosecution. This
amendment would have provided some protection for this constitutional principle and would have prevented the government from
using its foreign targeting authorities to obtain information on
Americans. We are concerned that the language that remains in
the bill—prohibiting only surveillance when the purpose of the surveillance is to obtain information on an American—may not protect
against the government targeting a person overseas as a fig leaf for
surveillance of the American with whom the overseas person is
communicating.
We strongly supported Senator Nelson’s amendment to strip from
the bill a provision providing blanket immunity to private entities
alleged to have cooperated with the Administration’s warrantless
wiretapping program. The arrangements made by the Administration the week of the mark-up to provide limited access to certain
documents related to the program were unfortunately inadequate.
More importantly, nothing in the documents, or anything else that
we have seen in the course of our review of the program, has convinced us that a sweeping grant of immunity for private entities
should have been included in this legislation.
Finally, we were extremely disappointed that a Feingold amendment to shorten the six-year sunset to two years did not pass. The
vast new authorities provided under the PAA, the ongoing confusion about how legislation in this area is and will be interpreted,
and ongoing changes in telecommunications technology require
that Congress conduct a near-term assessment of how this legislation is being interpreted and implemented and whether changes to
the new authorities are needed. In our view, Congress should not
wait until 2013 to conduct this thorough review.
RUSSELL D. FEINGOLD.
RON WYDEN.

cnoel on PRODPC60 with HEARING

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