Under this bill, the Government must submit an application and receive a warrant from the FISA Court before surveillance begins. No more warrantless surveillance. This is, in fact, a major point.
In emergency cases, there can be a short period of collection--up to 7 days--as the application is prepared. There has been a provision for emergency cases under FISA for some 30 years now. So that is prior court review for a U.S. person anywhere in the world if content is collected.
Meaningful court review. This bill strengthens court review. Under the Protect America Act, the Government submitted to the FISA Court its determination that procedures were in place to ensure that only people outside the United States would be targeted. The court could only reject an application for a warrant if it found that determination to be ''clearly erroneous.'' This bill returns to the traditional FISA standard, empowering the court to decide whether the Government's determination is ''reasonable.'' This is a higher standard of review, so the court review under this bill is meaningful.
Next, minimization. These first two improvements ensure that the Government will only be targeting people outside the country. That is good, but it is not enough. There is always the possibility of someone outside the country talking to a U.S. person inside the country. The bill addresses this with a process known as minimization.
In 1978, Congress said that the Government could do surveillance on U.S. persons under a court warrant, but required the Government to minimize the amount of information on those Americans who get included in the intelligence reporting. In practice, this actually means that the National Security Agency only includes information about a U.S. person that is strictly necessary to convey the intelligence. Most of the time, the person's name is not included in the report. That is the minimization process.
If an American's communication is incidentally caught up in electronic surveillance while the Government is targeting someone else, minimization protects that person's private information.
Now, the Protect America Act did not provide for court review over this minimization process at all. But this bill requires the court in advance to approve the Government's minimization procedures prior to commencing with any minimization program. That is good. That is the third improvement.
Fourth, reverse targeting. There is an explicit ban on reverse targeting. Now, what is reverse targeting? That is the concern that the National Security Agency could get around the warrant requirement. If the NSA wanted to get my communications but did not want to go to the FISA Court, they might try to figure out who I am talking with and collect the content of their calls to get to me. This bill says you cannot do that. You cannot reverse target. It is prohibited. This was a concern with the Protect America Act, and it is fixed in this bill.
Those are four reasons--good reasons. Here is a fifth: U.S. person privacy outside the United States. This bill does more than Congress has ever done before to protect Americans' privacy regardless of where they are, anywhere in the world. Under this bill, the executive branch will be required to obtain a warrant any time it seeks to direct surveillance at a U.S. person anywhere in the world. So any U.S. person anywhere in the world is protected by the requirement that a warrant must be received from the Foreign Intelligence Surveillance Court before electronic surveillance can begin.
Previously, FISA only covered people inside the United States. The Protect America Act did the same thing.
Now, also under this bill, there will be reviews of surveillance authorities by the Director of National Intelligence, the Attorney General, the heads of all relevant agencies, and the inspectors general of all relevant agencies on a regular basis, and the FISA Court and the Congress will receive the results of those reviews.
So there will be regular reporting from the professionals in the arena on how this bill is being followed through on--how electronic surveillance is being carried out worldwide. The Intelligence and Judiciary Committees will receive those reports. That, too, is important.
Also, under this bill, there will be a retrospective review of the President's Terrorist Surveillance Program. That is the program that has stirred the furor. The bill requires an unclassified report on the facts of the program, including its limits, the legal justifications, and the role played by the FISA Court and any private actors involved. This will provide needed accountability.
In summary, all intelligence collection under the Terrorist Surveillance Program will be brought under court review and court orders.
Everything I have described brings this administration back under the law. There is no more Terrorist Surveillance Program. There is only court-approved, Congressionally reviewed collection.
But what is to keep this administration or any other administration from going around the law again? The answer is one word, and it is called exclusivity.