Table 1. Comparison of the Senate Amendment to H.R. 3773 and the House Amendment to the Senate Amendment to H.R. 3773.(Part 1)

 
Table 1. Comparison of the Senate amendment to H.R. 3773 
and the House amendment to the Senate amendment to H.R. 3773 
 
H.R. 3773 (S. 2248) as passed by     H.R. 3773--House Amendment to the 
the Senate                           Senate Amendment 
 
Short Title--"Foreign Intelligence   Short Title--"Foreign Intelligence 
Surveillance Act of 1978             Surveillance Act of 1978 
Amendments  Act of 2008" or the      Amendments Act of 2008" or the 
"FISA Amendments  Act of 2008"       "FISA Amendments Act of 2008" 
 
Limitation on Definition of 
Electronic Surveillance 
 
Subsection 101(a) of the bill        Similar provision. Subsection 
strikes the existing title VII       101(a) of the bill. 
of FISA and replaces it with a 
new title VII. 
 
Limitation on Definition of          No similar provision. 
Electronic Surveillance: Under 
new section 701 of a new title 
VII of FISA, nothing in the 
definition  of "electronic 
surveillance" under subsection 
101(f) of FISA, 50  U.S.C. 
[section] 1801(f), shall be 
construed to encompass 
surveillance that is targeted 
in accordance with proposed 
title VII of the Foreign 
Intelligence Surveillance 
Act (FISA) at a person 
reasonably believed to be 
located outside the United 
States. Subsection 101(a)(2) 
of the bill. 
 
Definitions 
 
New section 702 of FISA:             New section 701 of FISA: 
Definitions. See also new            Definitions. Uses existing 
section 801 of FISA on               definitions from section 101 
definitions. Uses existing           of FISA of the terms "agent 
definitions from section             of a foreign power", "Attorney 
101 of FISA of the terms             General", "contents", 
"agent of a foreign power",          "electronic surveillance", 
"Attorney General",                  "foreign intelligence 
"contents", "electronic              information", "foreign power", 
surveillance", "foreign              "minimization procedures", 
intelligence information",           "person", "United States", 
"foreign power",                     and "United States person", 
"minimization procedures",           except as specifically provided 
"person", "United States",           in the new title VIII of FISA. 
and "United States person",          Provides new definitions of 
except as specifically               "congressional intelligence 
provided in the new title            committees", "Foreign 
VII of FISA. Provides new            Intelligence Surveillance 
definitions of "congressional        Court" and "Court", 
intelligence committees",            "Foreign Intelligence 
"Foreign Intelligence                Surveillance Court of Review" 
Surveillance Court" and              and "Court of Review", "electronic 
"Court", "Foreign Intelligence       communication service provider", 
Surveillance Court of Review"        and "intelligence community". 
and "Court of Review", 
"electronic communication 
service provider", and "element 
of the intelligence community". 
 
Targeting of Persons Other Than U.S. Persons Reasonably 
Believed to be Outside the United States to Acquire Foreign 
Intelligence Information 
 
Subsection 101(a)(2) of the bill,    Subsection 101(a)(2) of the bill, 
new section 703 of FISA: Permits     new section 702 of FISA: Permits 
Attorney General (AG) and the        the AG and DNI, pursuant to a 
Director of National Intelligence    FISC order approving the AG/DNI 
(DNI) to jointly authorize, for      certification, applicable 
up to 1 year, targeting of persons   targeting procedures and 
reasonably believed to be outside    minimization procedures under 
United States other than U.S.        new subsection 702(i)(3) or an 
persons to acquire foreign           emergency determination under 
intelligence information (see        subsection 702(g)(1)(B), to 
glossary for definition of           jointly authorize for up to 1 
Attorney General, subsection         year targeting of non-U.S. 
101(g) of FISA, and of United        persons reasonably believed to 
States person, subsection 101(i)     be located outside the United 
of FISA). Such an acquisition:       States to acquire foreign 
                                     intelligence information. 
                                     [Emphasis added.] Such an 
                                     acquisition: 
 
--may not intentionally target       --may not intentionally target 
any person known at the time of      any person known at the time of 
the acquisition to be located        acquisition to be located in the 
in the United States                 United States; 
 
--may not intentionally target a     --may not intentionally target a 
person reasonably believed to be     person reasonably believed to be 
located outside the United States    located outside the United States 
if the purpose of the acquisition    in order to target a particular, 
is to target a particular, known     known person reasonably believed 
person reasonably believed to be     to be in the United States; 
in the United States, except in 
accordance with title I (dealing 
with electronic surveillance) or 
title III (dealing with pen 
registers and trap and trace 
devices) of FISA. 
 
--may not intentionally target a     --may not intentionally target 
U.S. person reasonably believed      a U.S. person reasonably believed 
to be located outside the U.S.,      to be located outside the United 
except in accordance with new        States; 
sections 704, 705, or 706 of FISA; 
 
--shall not intentionally acquire    --may not intentionally acquire 
any communication as to which the    any communication as to which the 
sender and all intended              sender and all intended 
recipients are known at the time     recipients are known at the time 
of the acquisition to be located     of the acquisition to be located 
in the U.S. all intended             in the United States; and 
recipients are known at the time 
of the acquisition to be located 
in the U.S. 
 
--must be conducted in a manner      --shall be conducted in a manner 
consistent with the fourth           consistent with the fourth 
amendment to the U.S.                amendment to the Constitution of 
Constitution. New subsection         the United States. New subsection 
703(a), (b).                         702(a), (b). 
 
Conduct of acquisition: Such an      Conduct of acquisition: Such an 
acquisition may be conducted only    acquisition may only be conducted 
in accordance with an AG/DNI         in accordance with an AG/DNI 
certification; targeting             certification under new 
procedures; and minimization         subsection 702(g) or an emergency 
procedures. New subsection 703(c).   determination under new 
                                     subsection 702(g)(1)(B), 
                                     targeting procedures, minimization 
                                     procedures, and guidelines for 
                                     compliance with the above 
                                     limitations and with requirements 
                                     for filing an application under 
                                     section 104 for electronic 
                                     surveillance or 303 for physical 
                                     searches where required. New 
                                     subsections 702(c), (f). 
 
Adoption of Targeting Procedures, Minimization Procedures, 
Certifications, and Guidelines 
 
Adoption of targeting procedures:    Similar provision, new subsection 
Under new subsection 703(d), the     702(d). 
AG, in consultation with the DNI, 
shall adopt targeting procedures 
that are reasonably designed to 
ensure that any acquisition 
authorized under subsection 
703(a) is limited to targeting 
persons reasonably believed to 
be located outside the United 
States and does not result in 
the intentional acquisition of 
any communication as to which 
the sender and all intended 
recipients are known at the time 
of the acquisition to be located 
in the United States. 
 
Adoption of minimization             Similar provision, new subsection 
procedures:  Under new subsection    702(e). 
703(e), the AG, in consultation 
with the DNI, shall adopt 
minimization procedures that meed 
the definition of minimization 
procedures under subsection 
101(h) or subsection 301(4) of 
FISA for acquisitions authorized 
under new subsection 703(a). 
 
Requirements for AG/DNI              Requirements for AG/DNI 
certification as prerequisite        certification, new subsection 
to an acquisition, new subsection    702(g): Subject to subparagraph 
703(f) of FISA: Subject to           (B), if the AG and the DNI seek 
subparagraph (B), before             to authorize an acquisition under 
initiation of an acquisition,        this section, the AG and the DNI 
the AG and the DNI shall provide,    shall provide, under oath, a 
under oath, a written                written certification, attesting 
certification attesting that:        that: 
 
--there are reasonable procedures    --there are reasonable procedures 
in place for determining that the    in place for determining that the 
acquisition authorized is            acquisition authorized is 
targeted at persons reasonably       targeted at persons reasonably 
believed to be located outside       believed to be located outside 
the United States and that such      the United States and such 
procedures have been approved by,    procedures have been submitted to 
or will be submitted within 5        the FISC; and 
days for approval by, the FISC; 
 
--there are reasonable procedures    --there are reasonable procedures 
in place for determining that the    in place for determining that the 
acquisition authorized under         acquisition does not result in 
subsection 703(a) does not result    the intentional acquisition of 
in the intentional acquisition of    any communication as to which the 
any communication as to which the    sender and all intended 
sender and all intended              recipients are known at the time 
recipients are known at the time     of the acquisition to be located 
of the acquisition to be located     in the United States, and such 
in the United States, and that       procedures have been submitted to 
such procedures have been            the FISC; 
approved by, or will be submitted 
within 5 days for approval by, 
the FISC; 
 
No similar provision.                --guidelines have been adopted in 
                                     accordance with subsection (f) to 
                                     ensure compliance with the …