PUBLIC LAW 95-511—OCT. 25, 1978 92 STAT. 1783
Public Law 95-511
95th Congress
An Act
To authorize electronic surveillance to obtain foreign intelligence information. Oct. 25, 1978
[S. 1566]
Be it enacted hy the Senate and House of Representatives of the
United States of America in Congress assemhled, That this Act may Foreign
be cited as the "Foreign Intelligence Surveillance Act of 1978". Intelligence
Surveillance Act
TABLE OF CONTENTS of 1978.
50 u s e 1801
TITLE I—ELECTRONIC SURVEILLANCE WITHIN T H E UNITED STATES note.
FOR FOREIGN INTELLIGENCE PURPOSES
Sec. 101. Definitions.
Sec. 102. Authorization for electronic surveillance for foreign intelligence
purposes.
Sec. 103. Designation of judges.
Sec. 104. Application for an order.
Sec. 105. Issuance of an order.
Sec. 106. Use of inforuiatiou.
Sec. 107. Report of electronic surveillance.
Sec. 108. Congressional oversight.
Sec. 109. Penalties.
Sec. 110. Civil liability.
Sec. 111. Authorization during time of war.
T I T L E II—CONFORMING AMENDMENTS
Sec. 201. Amendments to chapter 119 of title 18, United States Code.
TITLE III—EFFECTIVE DATE
Sec. 301. Effective date.
T I T L E I—ELECTRONIC SURVEILLANCE W I T H I N T H E
UNITED STATES FOR FOREIGN INTELLIGENCE
PURPOSES
DEFINITIONS
SEC. 101. As used in this title: 50 u s e 1801.
(a) "Foreign power" means—
(1) a foreign government or any component thereof,
whether or not recognized by the United States;
(2) a faction of a foreign nation or nations, not substan-
tially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign
government or governments to be directed and controlled by
^ u c h foreign govemment^rgovermnent&;
(4) a group engaged in international terrorism or activities
in preparation therefor;
(5) a foreign-based political organization, not substantially
composed of United States persons; or
(6) an entity that is directed and controlled by a foreign
government or governments.
(b) "Agent of a foreign power" means—
(1) any person other than a United States person, who—
(A) acts in the United States as an officer or employee
of a foreign power, or as a member of a foreign power
as defined in subsection (a) (4);
92 STAT. 1784 PUBLIC LAW 95-511—OCT. 2 5 , 1978
( B ) acts for or on behalf of a foreign power which
engages in clandestine intelligence activities in the United
States contrary to the interests of the United States,
when the circumstances of such person's presence in the
United States indicate t h a t such person may engage in
such activities in the United States, or when such person
knowingly aids or abets any person in the conduct of
such activities or knowingly conspires with any person
to engage in such activities; or
(2) any person who—
(A) knowingly engages in clandestine intelligence
gathering activities for or on behalf of a foreign power,
which activities involve or may involve a violation of the
criminal statutes of the United States;
( B ) pursuant to the direction of an intelligence service
or network of a foreign power, knowingly engages in any
other clandestine intelligence activities for or on behalf
of such foreign power, which activities involve or are
about to involve a violation of the criminal statutes of
the United States;
(C) knowingly engages in sabotage or international
terrorism, or activities that are in preparation therefor,
for or on behalf of a foreign power; or
( D ) knowingly aids or abets any person in the conduct
of activities described in s u b p a r a g r a p h ( A ) , ( B ) , or (C)
or knowingly conspires with any person to engage in
activities described in subparagraph ( A ) , ( B ) , or ( C ) .
(c) "International terrorism" means activities that^—
(1) involve violent acts or acts dangerous to human life
t h a t are a violation of the criminal laws of the United States
or of any State, or t h a t would be a criminal violation if com-
mitted within the jurisdiction of the United States or any
State;
(2) appear to be intended—
(A) to intimidate or coerce a civilian population;
(B) to influence the policy of a government by intimi-
dation or coercion; or
(C) to affect the conduct of a government by assassina-
tion or k i d n a p p i n g ; and
(3) occur totally outside the United States, or transcend
national boundaries in terms of the means by which they are
accomplished, the persons they appear intended to coerce or
intimidate, or the locale in which their perpetrators operate
or seek asylum.
(d) "Sabotage" means activities t h a t involve a violation of
18 u s e 2151 et chapter 105 of title 18, United States Code, or t h a t would involve
such a violation if committed against the United States.
(e) "Foreign intelligence information" means—
(1) information t h a t relates to, and if concerning a United
States person is necessary to, the ability of the United States
to protect against^—
( A ) actual or potential attack or other grave hostile
acts of a foreign power or an agent of a foreign power;
( B ) sabotage or international terrorism by a foreign
power or an agent of a foreign power; or
(C) clandestine intelligence activities by an intelligence
service or network of a foreign power or by an agent of
a foreign power; or
PUBLIC LAW 95-511—OCT. 25, 1978 92 STAT. 1785
(2) information with respect to a foreign power or foreign
territory that relates to, and if concerning a United States
person is necessary to—
(A) the national defense or the security of the United
States; or
(B) the conduct of the foreign affairs of the United
States.
(f) "Electronic surveillance" means—
(1) the acquisition by an electronic, mechanical, or other
surveillance device of the contents of any wire or radio com-
munication sent by or intended to be received by a particular,
known United States person who is in the United States, if
the contents are acquired by intentionally targeting that
United States person, under circumstances in which a person '
has a reasonable expectation of privacy and a warrant would
be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other
surveillance device of the contents of any wire communica-
tion to or from a person in the United States, without the
consent of any party thereto, if such acquisition occurs in the
United States;
(3) the intentional acquisition by an electronic, mechanical,
or other surveillance device of the contents of any radio com-
munication, under circumstances in which a person has a
reasonable expectation of privacy and a warrant would be
required for law enforcement purposes, and if both the sender
and all intended recipients are located within the United
States; or
(4) the installation or use of an electronic, mechanical, or
other surveillance device in the I"'^nited States for monitor-
ing to acquire information, other than from a wire or radio
communication, under circumstances in which a person has
a reasonable expectation of privacy and a warrant would be
required for law enforcement purposes.
(g) "Attorney General" means the Attorney General of the
I'^nited States (or Acting Attorney General) or the Deputy
Attorney General.
(h) "Minimization procedures", with respect to electronic sur-
veillance, means—
(1) specific procedures, which shall be adopted by the
Attorney General, that are reasonably designed in light of the
purpose and technique of the particular surveillance, to mini-
mize the acquisition and retention, and prohibit the dissemi-
nation, of nonpublicly available information concerning
unconsenting United States persons consistent with the need
of the United States to obtain, produce, and disseminate for-
eign intelligence information;
(2) procedures that require that nonpublicly available
information, which is not foreign intelligence information,
as defined in subsection (e) (1), shall not bo disseminated in
a manner that identifies any United States person, without
such person's consent, unless such person's identity is neces-
sary to imderstand foreign intelligence information or assess
its importance;
(3) notwithstanding paragraphs (1) and (2), procedures
that allow for the retention and dissemination of information
that is evidence of a crime which has been, is being, or is about
92 STAT. 1786 PUBLIC LAW 95-511—OCT. 25, 1978
to be committed and that is to be retained or disseminated for
law enforcement purposes; and
(4) notwithstanding paragraphs (1), (2), and (3), with
respect to any electronic surveillance approved pursuant to
section 102(a), procedures that require that no contents of
any communication to which a United States person is a party
shall be disclosed, disseminated, or used for any purpose or
retained for longer than twenty-four hours unless a court
order under section 105 is obtained or unless the Attorney
General determines that the information indicates a threat of
death or serious bodily harm to any person,
(i) "United States person" means a citizen of the United States,
an alien lawfully admitted for permanent residence (as defined in
8 use 1101. section 101(a) (20) of the Immigration and Nationality Act), an
unincorporated association a substantial number of members of
which are citizens of the United States or aliens lawfully admitted
for permanent residence, or a corporation which is incorpo-
rated in the United States, but does not include a corporation
or an association which is a foreign power, as defined in subsection
(a) ( l ) , ( 2 ) , o r ( 3 ) .
(j) "United States", when used in a geographic sense, means
all areas under the territorial sovereignty of the United States
and the Trust Territory of the Pacific Islands.
(k) "Aggrieved person" means a person who is the target of an
electronic surveillance or any other person whose communications
or activities were subject to electronic surveillance.
(1) "Wire communication" means any communication while it
is being carried by a wire, cable, or other like connection furnished
or operated by any person engaged as a common carrier in pro-
viding or operating such facilities for the transmission of inter-
state or foreign communications.
(m) "Person" means any individual, including any officer or
employee of the Federal Government, or any group, entity, asso-
ciation, corporation, or foreign power.
(n) "Contents", when used with respect to a communication,
includes any information concerning the identity of the parties to
such communication or the existence, substance, purport, or mean-
ing of that communication.
(o) "State" means any State of the United States, the District
of Columbia, the Commonwealth of Puerto Rico, the Trust Ter-
ritory of the Pacific Islands, and any territory or possession of the
United States.
AUTHORIZATION FOR ELECTRONIC SURVEILLANCE FOR FOREIGN
INTELLIGENCE PURPOSES
50 use 1802. SEC. 102. (a) (1) Notwithstanding any other law, the President,
through the Attorney General, may authorize electronic surveillance
without a court order under this title to acquire foreign intelligence
information for periods of up to one year if the Attorney General
certifies in writing under oath that—
(A) the electronic surveillance is solely directed at—
(i) the acquisition of the contents of communications trans-
mitted by means of communications used exclusively between
or among foreign powers, as defined in section 101(a) (1),
(2),or(3);or
PUBLIC LAW 95-511—OCT. 25, 1978 92 STAT. 1787
(ii) the acquisition of technical intelligence, other than
the spoken communications of individuals, from property or
premises under the open and exclusive control of a foreign
power, as defined in section 101(a) (1), (2), or (3) ;
(B) there is no substantial likelihood that the surveillance will
acquire the contents of any communication to which a United
States person is a party; and
(C) the proposed minimization procedures with respect to such
surveillance meet the definition of minimization procedures under
section 101(h); and
if the Attorney General reports such minimization procedures and any Report to
changes thereto to the House Permanent Select Committee on Intel- congressional
ligence and the Senate Select Committee on Intelligence at least thirty committees.
days prior to their effective date, unless the Attorney General deter-
mines immediate action is required and notifies the committees imme-
diately of such minimization procedures and the reason for their
becoming effective immediately.
(2) An electronic surveillance authorized by this subsection may
be conducted only in accordance with the Attorney General's certifica-
tion and the minimization procedures adopted by him. The Attorney Report to
General shall assess compliance with such procedures and shall report congressional
such assessments to the House Permanent Select Committee on Intel- committees.
ligence and the Senate Select Committee on Intelligence under the
provisions of section 108 (a).
(3) The Attorney General shall immediately transmit under seal to
the court established under section 103(a) a copy of his certification.
Such certification shall be maintained under security measures estab-
lished by the Chief Justice with the concurrence of the Attorney
General, in consultation with the Director of Central Intelligence,
and shall remain sealed unless—
(A) an application for a court order with respect to the sur-
veillance is made under sections 101(h) (4) and 104; or
(B) the certification is necessary to determine the legality of
the surveillance under section 106(f).
(4) With respect to electronic surveillance authorized by this sub- Communication
section, the Attorney General may direct a specified communication common carrier,
common carrier to— duties.
(A) furnish all information, facilities, or technical assistance
necessary to accomplish the electronic surveillance in such a man-
ner as will protect its secrecy and produce a minimum of inter-
ference with the services that such carrier is providing its
customers; and
(B) maintain under security procedures approved by the Attor-
ney General and the Director of Central Intelligence any records
concerning the surveillance or the aid furnished which such car-
rier wishes to retain.
The Government shall compensate, at the prevailing rate, such carrier Compensation.
for furnishing such aid.
(b) Applications for a court order under this title are authorized Applications
if the President has, by written authorization, empowered the Attor- approval.
my General to approve applications to the court having jurisdiction
under section 103, and a judge to whom an application is made may,
notwithstanding any other law, grant an order, in conformity with
section 105, approving electronic surveillance of a foreign power or
an agent of a foreign power for the purpose of obtaining foreign
intelligence information, except that the court shall not have jurisdic-
92 STAT. 1788 PUBLIC LAW 95-511—OCT. 25, 1978
tion to grant any order approving electronic surveillance directed
solely as described in paragraph (1) (A) of subsection (a) unless such
surveillance may involve the acquisition of communications of any
United States person.
DESIGNATION OF JUDGES
Court to hear SEC, 103. (a) The Chief Justice of the United States shall publicly
applications and designate seven district court judges from seven of the United States
grant orders. judicial circuits who shall constitute a court which shall have juris-
50 use 1803. diction to hear applications for and grant orders approving electronic
surveillance anywhere within the United States under the procedures
set forth in this Act, except that no judge designated under this sub-
section shall hear the same application for electronic surveillance
under this Act which has been denied previously by another judge des-
ignated under this subsection. If any judge so designated denies an
application for an order authorizing electronic surveillance under this
Act, such judge shall provide immediately for the record a written
statement of each reason for his decision and, on motion of the United
States, the record shall be transmitted, under seal, to the court of
review established in subsection (b).
Court of review. (b) The Chief Justice shall publicly designate three judges, one of
whom shall be publicly designated as the presiding judge, from the
United States district courts or courts of appeals who together shall
comprise a court of review which shall have jurisdiction to review the
denial of any application made under this Act. If such court deter-
mines that the application was properly den'ed, the court shall imme-
diately provide for the record a written statement of each reason for
its decision and, on petition of the United States for a writ of certio-
rari, the record shall be transmitted under seal to the Supreme Court,
which shall have jurisdiction to review such decision.
(c) Proceedings under this Act shall be conducted as expeditiously
Record of as possible. The record of proceedings under this Act, including appli-
proceedings. cations made and orders granted, shall be maintained under security
measures established by the Chief Justice in consultation with the
Attorney General and the Director of Central Intelligence.
Tenure. (d) Each judge designated under this section shall so serve for a
maximum of seven years and shall not be eligible for redesignation,
except that the judges first designated under subsection (a) shall be
designated for terms of froin one to seven years so that one term expires
each year, and that judges first designated under subsection (b) shall
be designated for terms of three, five, and seven years.
APPLICATION FOR AN ORDER
50 use 1804. SEC. 104. (a) Each application for an order approving electronic
surveillance under this title shall be made by a Federal officer in writ-
ing upon oath or affirmation to a judge having jurisdiction under sec-
Approval of tion 103. Each application shall require the approval of the Attorney
Attorney General based upon his finding that it satisfies the criteria and require-
General. ments of such application as set forth in this title. It shall include—
(1) the identity of the Federal officer making the application;
(2) the authority conferred on the Attorney General by the
President of the United States and the approval of the Attorney
General to make the application;
(3) the identity, if known, or a description of the target of the
electronic surveillance;
PUBLIC LAW 95-511—OCT. 25, 1978 92 STAT. 1789
(4) a statement of the facts and circumstances relied upon by
theapplicanttojustify his belief that—
(A) the target of the electronic surveillance is a foreign
power or an agent of a foreign power; and
(B) each of the facilities or places at which the electronic
surveillance is directed is being used, or is about to be used, by
a foreign power or an agent of a foreign power;
(5) a statement of the proposed minimization procedures;
(6) a detailed description of the nature of the information
sought and the type of communications or activities to be subjected
to the surveillance;
(7) a certification or certifications by the Assistant to the Presi-
dent for National Security Affairs or an executive branch official
or officials designated by the President from among those executive
officers employed in the area of national security or defense and
appointed by the President with the advice and consent of the
Senate—
(A) that the certifying official deems the information
sought to be foreign intelligence information;
(B) that the purpose of the surveillance is to obtain foreign
intelligence information;
(C) that such information cannot reasonably be obtained
by normal investigative techniques;
(D) that designates the type of foreign intelligence
information being sought according to the categories
described in section 101 (e); and
(E) including a statement of the basis for the certification
that—
(i) the information sought is the type of foreign
intelligence information designated; and
(ii) such information cannot reasonably be obtained
by normal investigative techniques;
(8) a statement of the means by which the surveillance will be
effected and a statement whether physical entry is required to
effect the surveillance:
(9) a statement of the facts concerning all previous applications
that have been made to any judge under this title involving any
of the persons, facilities, or places specified in the application,
and the action taken on each previous application;
(10) a statement of the period of time for which the electronic
surveillance is required to be maintained, and if the nature of the
intelligence gathering is such that the approval of the use of
electronic surveillance under this title should not automatically
terminate when the described type of information has first been
obtained, a description of facts supporting the belief that
additional information of the same type will be obtained
thereafter; and
(11) whenever more than one electronic, mechanical or other
surveillance device is to be used with respect to a particular
proposed electronic surveillance, the coverage of the devices
involved and what minimization procedures apply to information
acquired by each device.
(b) Whenever the target of the electronic surveillance is a foreign Foreign power,
power, as defined in section 101(a) (1), (2), or (3), and each of the information
facilities or places at which the surveillance is directed is owned, exclusion,
leased, or exclusively used by that foreign power, the application need
not contain the information required by paragraphs (6), (7) ( E ) , (8),
92 STAT. 1790 PUBLIC LAW 95-511—OCT. 25, 1978
and (11) of subsection (a), but shall state whether physical entry is
required to effect the surveillance and shall contain such information
about the surveillance techniques and communications or other
information concerning United States persons likely to be obtained as
may be necessary to assess the proposed minimization procedures.
(c) The Attorney General may require any other affidavit or
certification from any other officer in connection with the application.
(d) The judge may require the applicant to furnish such other
information as may be necessary to make the determinations required
by section 105.
ISSUANCE o r A N ORDER
50 use 1805. SEC. 105. (a) Upon an application made pursuant to section 104,
the judge shall enter an ex parte order as requested or as modified
approving the electronic surveillance if he finds that—
(1) the President has authorized the Attorney General to
approve applications for electronic surveillance for foreign
intelligence information;
(2) the application has been made by a Federal officer and
approved by the Attorney General;
(3) on the basis of the facts submitted by the applicant there is
probable cause to believe that—
(A) the target of the electronic surveillance is a foreign
power or an agent of a foreign power: Provided^ That no
United States person may be considered a foreign power or
an agent of a foreign power solely upon the basis of activities
protected by the first amendment to the Constitution of the
United States; and
(B) each of the facilities or places at which the electronic
surveillance is directed is being used, or is about to be used,
by a foreign power or an agent of a foreign power;
(4) the proposed minimization procedures meet the definition
of minimization procedures under section 101(h); and
(5) the application which has been filed contains all statements
and certifications required by section 104 and, if the target is a
United States person, the certification or certifications are not
clearly erroneous on the basis of the statement made under section
104(a) (7) (E) and any other information furnished under section
104(d).
(b) An order approving an electronic surveillance under this section
shall—
(1) specify—
(A) the identity, if known, or a description of the target of
the electronic surveillance;
(B) the nature and location of each of the facilities or
places at which the electronic surveillance will be directed;
(C) the type of information sought to be acquired and the
type of communications or activities to be subjected to the
surveillance;
(D) the means by which the electronic surveillance will be
effected and whether physical entry will be used to effect the
surveillance;
(E) the period of time during which the electronic surveil-
lance is approved; and
(F) whenever more than one electronic, mechanical, or
other surveillance device is to be used under the order, the
authorized coverage of the devices involved and what minimi-
PUBLIC LAW 95-511—OCT. 25, 1978 92 STAT. 1791
zation procedures shall apply to information subject to
acquisition by each device; and
(2) direct—
(A) that the minimization procedures be followed;
(B) that, upon the request of the applicant, a specified
communication or other common carrier, landlord, custodian,
or other specified person furnish the applicant forthwith all
information, facilities, or technical assistance necessary to
accomplish the electronic surveillance in such a manner as
will protect its secrecy and produce a minimum of interfer-
ence with the services that such carrier, landlord, custodian,
or other person is providing that target of electronic
surveillance;
(C) that such carrier, landlord, custodian, or other person
maintain under security procedures approved by the Attorney
General and the Director of Central Intelligence any records
concerning the surveillance or the aid furnished that such
person wishes to retain; and
(D) that the applicant compensate, at the prevailing rate,
such carrier, landlord, custodian, or other person for furnish-
ing such aid.
(c) Whenever the target of the electronic surveillance is a foreign
power, as defined in section 101(a) (1), (2), or (3), and each of the
facilities or places at which the surveillance is directed is owned,
leased, or exclusively used by that foreign power, the order need not
contain the information required by subparagraphs (C), (D), and (F)
of subsection (b)(1), but shall generally describe the information
sought, the communications or activities to be subjected to the surveil-
lance, and the type of electronic surveillance involved, including
whether physical entry is required,
(d) (1) An order issued under this section may approve an electronic Approval
surveillance for the period necessary to achieve its purpose, or for
ninety days, whichever is less, except that an order under this section
shall approve an electronic surveillance targeted against a for-
eign power, as defined in section 101(a) (1), (2), or (3), for the
period specified in the application or for one year, whichever is less.
(2) Extensions of an order issued under this title may be granted Extensions of an
on the same basis as an original order upon an application for an exten- order.
sion and new findings made in the same manner as required for an
original order, except that an extension of an order under this Act for
a surveillance targeted against a foreign power, as defined in section
101(a) (5) or (6), or against a foreign power as defined in section
101(a) (4) that is not a United States person, may be for a period not
to exceed one year if the judge finds probable cause to believe that no
communication of any individual United States person will be
acquired during the period.
(3) At or before the end of the period of time for which electronic Review of
surveillairce is appi\>ved by an order or an extension, the judge may circumstances of
assess compliance with the minimization procedures by reviewing the order or
circumstances under which information concerning United States extension.
persons was acquired, retained, or disseminated.
(e) Notwithstanding any other provision of this title, when the
Attorney General reasonably determines that—
(1) an emergency situation exists with respect to the employ-
ment of electronic surveillance to obtain foreign intelligence
information before an order authorizing such surveillance can with
due diligence be obtained; and
92 STAT. 1792 PUBLIC LAW 95-511—OCT. 2 5 , 1978
(2) the factual basis for issuance of an order under this title to
approve such surveillance exists;
Emergency order, he may authorize the emergency employment of electronic surveillance
if a judge having jurisdiction under section 103 is informed by the
Attorney General or his designee at the time of such authorization t h a t
the decision has been made to employ emergency electronic surveillance
and if an application in accordance with this title is made to t h a t
judge as soon as practicable, but not more t h a n twenty-four hours after
the Attorney General authorizes such surveillance. If the Attorney
General authorizes such emergency employment of electronic surveil-
lance, he shall require t h a t the minimization procedures required by
this title for t h e issuance of a judicial order be followed. I n the absence
of a judicial order approving such electronic surveillance, the surveil-
lance shall terminate when the information sought is obtained, when
the application for the order is denied, or after the expiration of
twenty-four hours from the time of authorization by the Attorney
Denial of General, whichever is earliest. I n the event t h a t such application for
application. approval is denied, or in any other case where the electronic surveil-
lance is terminated and no order is issued approving the surveillance,
no information obtained or evidence derived from such surveillance
shall be received in evidence or otherwise disclosed in any trial, hear-
ing, or other proceeding in or before any court, g r a n d jury, depart-
ment, office, agency, regulatory body, legislative committee, or other
authority of the United States, a State, or political subdivision thereof,
and no information concerning any United States person acquired
from such surveillance shall subsequently be used or disclosed in any
other manner by Federal officers or employees without the consent of
such person, except with t h e approval of the Attorney General if t h e
information indicates a threat of death or serious bodily h a r m to any
Review. person. A denial of the application made under this subsection may be
reviewed as provided in section 103.
Testing of (f) Notwithstanding any other provision of this title, officers,
electronic employees, or agents of the United States are authorized in the normal
equipment. course of their official duties to conduct electronic surveillance not
targeted against the communications of any particular person or
persons, under procedures approved by the Attorney General, solely
to—
(1) test the capability of electronic equipment, if—
(A) it is not reasonable to obtain the consent of the persons
incidentally subjected to the surveillance;
( B ) the test is limited in extent and duration to that nec-
essary to determine the capability of the equipment;
(C) the contents of any communication acquired are
retained and used only for the purpose of determining the
capability of the equipment, are disclosed only to test person-
nel, and are destroyed before or immediately upon completion
of the test; a n d :
Termination. ( D ) Provided, T h a t the test may exceed ninety days only
with the prior approval of the Attorney General;
(2) determine the existence and capability of electronic surveil-
lance equipment being used by persons not authorized to conduct
electronic surveillance, if—
( A ) it is not reasonable to obtain the consent of persons
incidentally subjected to the surveillance;
( B ) such electronic surveillance is limited in extent and
duration to t h a t necessary to determine the existence and
capability of such equipment; and
PUBLIC LAW 95-511—OCT. 25, 1978 92 STAT. 1793
(C) any information acquired by such surveillance is used
only to enforce chapter 119 of title 18, United States Code, 18 u s e 2510 et
or section 605 of the Communications Act of 1934, or to pro- seq.
tect information from unauthorized surveillance; or 47 u s e 605.
(3) train intelligence personnel in the use of electronic surveil- Training of
lance equipment, if— intelligence
personnel,
(A) it is not reasonable to— conditions.
(i) obtain the consent of the persons incidentally
subjected to the surveillance;
(ii) train persons in the course of surveillances other-
wise authorized by this title; or
(iii) train persons in the use of such equipment without
engaging in electronic surveillance;
(B) such electronic surveillance is limited in extent and
duration to that necessary to train the personnel in the use
of the equipment; and
(C) no contents of any communication acquired are
retained or disseminated for any purpose, but are destroyed
as soon as reasonably possible.
(g) Certifications made by the Attorney General pursuant to section Record retention
102(a) and applications made and orders granted under this title shall requirement.
be retained for a period of at least ten years from the date of the certifi-
cation or application.
USE OP INFORMATION"
SEC. 106. (a) Information acquired from an electronic surveillance 50 u s e 1806.
conducted pursuant to this title concerning any United States person
may be used and disclosed by Federal officers and employees without
the consent of the United States person only in accordance with the
minimization procedures required by this title. No otherwise privileged
communication obtained in accordance with, or in violation of, the
provisions of this title shall lose its privileged character. No informa-
tion acquired from an electronic surveillance pursuant to this title
may be used or disclosed by Federal officers or employees except for
law^ful purposes.
(b) No information acquired pursuant to this title shall be disclosed Statement for
for law enforcement purposes unless such disclosure is accompanied disclosure.
by a statement that such information, or any information derived
tlierefrom, may only be used in a criminal proceeding with the advance
authorization of the Attorney General.
(c) Whenever the Government intends to enter into evidence or
otlierwise use or disclose in any trial, hearing, or other proceeding in
or before any court, department, officer, agency, regulatory body, or
other authority of the United States, against an aggrieved person, any
information obtained or derived from an electronic surveillance of
that aggrieved person pursuant to the authority of this title, the Gov-
ernment shall, prior to the trial, hearing, or other proceeding or at a
reasonable time prior to an effort to so disclose or so use that informa-
tion or submit it in evidence, notify the aggrieved person and the
court or other autliority in which the information is to be disclosed or
used that the Government intends to so disclose or so use such
information.
(d) Whenever any State or political subdivision thereof intends to
enter into evidence or otherwise use or disclose in any trial, hearing,
or other proceeding in or before any court, department, officer, agency,
regulatory body, or other authority of a State or a political subdivsion
thereof, against an aggrieved person any information obtained or
9 2 STAT. 1794 PUBLIC LAW 95-511—OCT. 25, 1978
derived from an electronic surveillance of that aggrieved person pur-
suant to the authority of this title, the State or political subdivision
thereof shall notify the aggrieved person, the court or other authority
in which the information is to be disclosed or used, and the Attorney
General that the State or political subdivision thereof intends to so
disclose or so use such information.
(e) A n y person against whom evidence obtained or derived from an
electronic surveillance to which he is an aggrieved person is to be, or
has been, introduced or otherwise iised or disclosed in any trial, hear-
ing, or other proceeding in or before any court, department, officer,
agency, regulatoi-y body, or other authority of the United States, a
State, or a political subdivision thereof, may move to suppress the
evidence obtained or derived from such electronic surveillance on the
grounds that^—
(1) the information was unlawfully acquired; or
(2) the surveillance was not made in conformity with an oi"der
of authorization or approval.
Such a motion shall be made before the trial, hearing, or other proceed-
ing unless there was no opportunity to make such a motion or the
person was not aware of the grounds of t h e motion.
(f) Whenever a court or other authority is notified pursuant to sub-
section (c) or ( d ) , or whenever a motion is made p u r s u a n t to subsec-
tion ( e ) , or whenever any motion or request is made by an aggrieved
person pursuant to any other statute or rule of the United States or
any State before any court or other authority of the United States or
any State to discover or obtain applications or orders or other mate-
rials relating to electronic surveillance or to discover, obtain, or sup-
press evidence or information obtained or derived from electronic
surveillance under this Act, the United States district court or, where
the motion is made before another authority, the United States district
court in the same district as the authority, shall, notwithstanding any
other law, if the Attorney General files an affidavit under oath t h a t
disclosure or an adversary hearing would harm the national security
of the United States, review in camera and ex p a r t e the application,
order, and such other materials relating to the surveillance as may be
necessary to determine whether the surveillance of the aggrieved per-
son was lawfully authorized and conducted. I n making this determina-
tion, the court may disclose to the aggrieved person, under appropriate
security procedures and protective orders, portions of the application,
order, or other materials relating to t h e surveillance only where such
disclosure is necessary to make an accurate determination of the
legality of the surveillance.
(g) I f the United States distiict court pursuant to subsection (f)
determines t h a t the surveillance was not lawfully authorized or con-
ducted, it shall, in accordance with the requirements of law, suppress
the evidence which was unlawfully obtained or derived from electronic
surveillance of the aggrieved person or otherwise g r a n t t h e motion
of the aggrieved person. If the court determines t h a t the surveillance
was lawfully authorized and conducted, it shall deny the motion of
the aggrieved person except to the extent t h a t due process requires
discovery or disclosure.
(h) Orders g r a n t i n g motions or requests under subsection ( g ) ,
decisions under this section t h a t electronic surveillance was not law-
fully authorized or conducted, and orders of the United States district
court requiring review or g r a n t i n g disclosure of applications, orders,
or other materials relating to a surveillance shall be final orders and
binding upon all courts of the United States and the several States
PUBLIC LAW 95-511—OCT. 25, 1978 92 STAT. 179 S
except a United States court of appeals and the Supreme Court.
(i) In circumstances involving the unintentional acquisition by an
electronic, mechanical, or other surveillance device of the contents of
any radio communication, under circumstances in which a person has
a reasonable expectation of privacy and a warrant would be required
for law enforcement purposes, and if both the sender and all intended
recipients are located within the United States, such contents shall be Disposal of
destroyed upon recognition, unless the Attorney General determines contents.
that the contents indicate a threat of death or serious bodily harm to
any person.
(j) If an emergency employment of electronic surveillance is author-
ized under section 105(e) and a subsequent order approving the
surveillance is not obtained, the judge shall cause to be served on any
United States person named in the application and on such other
United States persons subject to electronic surveillance as the judge
may determine in his discretion it is in the interest of justice to serve,
notice of—
(1) the fact of the application;
(2) the period of the surveillance; and
(3) the fact that during the period information was or was not
obtained.
On an ex parte showing of good cause to the judge the serving of the Postponement or
notice required by this subsection may be postponed or suspended for suspension of
a period not to exceed ninety days. Thereafter, on a further ex parte notice, time
limitation.
showing of good cause, the court shall forego ordering the serving of
the notice required under this subsection.
REPORT OF ELECTRONIC SURVEILLANCE
SEC. 107. In April of each year, the Attorney General shall transmit Report to
to the Administrative Office of the United States Court and to Con- Congress.
gress a report setting forth with respect to the preceding calendar 50 use lfl07.
year—
(a) the total number of applications made for orders and exten-
sions of orders approving electronic surveillance under this title;
and
(b) the total number of such orders and extensions either
granted, modified, or denied.
CONGRESSIONAL OVERSIGHT
SEC. 108. (a) On a semiannual basis the Attorney General shall Report to
fully inform the House Permanent Select Committee on Intelligence congressional
and the Senate Select Committee on Intelligence concerning all elec- committees.
tronic surveillance under this title. Nothing in this title shall be 50 use 1808.
deemed to limit the authority and responsibility of the appropriate
committees of each House of Congress to obtain such information as
they may need to carry out their respective functions and duties.
(b) On or before one year after the effective date of this Act and Report of
on the same day each year for four years thereafter, the Permanent congressional
Select Committee on intelligence and the Senate Select Committee committees to
on Intelligence shall ^epoit respectively to the House of Representa- Congress.
tives and the Senate, concerning the implementation of this Act. Said
reports shall include but not be limited to an analysis and recommenda-
tions concerning whether this Act should be (1) amended, (2) repealed,
or (3) permitted to continue in effect without amendment.
92 STAT. 1796 PUBLIC LAW 95-511—OCT. 25, 1978
PENALTIES
50 use 1809. SEC. 109. (a) OFFENSE.—A person is guilty of an ojffense if he
intentionally—
(1) engages in electronic surveillance under color of law except
as authorized by statute; or
(2) discloses or uses information obtained under color of law
by electronic surveillance, knowing or having reason to know that
the information was obtained through electronic surveillance not
authorized by statute.
(b) DEFENSE,—It is a defense to a prosecution under subsection (a)
that the defendant was a law enforcement or investigative officer
engaged in the course of his official duties and the electronic surveil-
lance was authorized by and conducted pursuant to a search warrant or
court order of a court of competent jurisdiction.
(c) PENALTY..—An offense described in this section is punishable
by a fine of not more than $10,000 or imprisonment for not more than
five years, or both.
(d) JURISDICTION.-—There is Federal jurisdiction over an offense
under this section if the person committing the offense was an officer
or employee of the United States at the time the offense was committed.
CIVIL LIABILITY
50 use 1810. S E C 110. CIVIL ACTION.—An aggrieved person, other than a foreign
power or an agent of a foreign power, as defined in section 101 (a) or
( b ) ( 1 ) ( A ) , respectively, who has been subjected to an electronic
surveillance or about whom information obtained by electronic sur-
veillance of such person has been disclosed or used in violation of
section 109 shall have a cause of action against any person who
committed such violation and shall be entitled to recover—
(a) actual damages, but not less than liquidated damages of
$1,000 or $100 per day for each day of violation, whichever is
greater; ,
(b) punitive damages; and
(c) reasonable attorney's fees and other investigation and
litigation costs reasonably incurred.
AUTHORIZATION DURING T I M E OF WAR
50 use 1811. SEO. 111. Notwithstanding any other law, the President, through
the Attorney General, may authorize electronic surveillance without
a court order under this title to acquire foreign intelligence
information for a period not to exceed fifteen calendar days following
a declaration of war by the Congress.
T I T L E II—CONFORMING AMENDMENTS
AMENDMENTS TO CHAPTER 1 1 9 OF TITLE 1 8 , UNITED STATES CODE
SEC. 201. Chapter 119 of title 18, United States Code, is amended as
follows:
18 use 2511. (a) Section 2511(2) (a) (ii) is amended to read as follows:
"(ii) Notwithstanding any other law, communication common
carriers, their officers, employees, and agents, landlords, custodians, or
other persons, are authorized to provide information, facilities, or
technical assistance to persons authorized by law to intercept wire or
PUBLIC LAW 95-511—OCT. 2 5 , 1978 92 STAT. 1797
oral communications or to conduct electronic surveillance, as defined
in section 101 of the Foreign Intelligence Surveillance Act of 1978, if
the common carrier, its officers, employees, or agents, landlord,
custodian, or other specified person, has been provided with—
" ( A ) a court order directing such assistance signed by the
authorizing judge, or
" ( B ) a certification in writing by a person specified in section
2518(7) of this title or the Attorney General of the United States 18 u s e 2518.
t h a t no w a r r a n t or court order is required by law, t h a t all statutory
requirements have been met, and that the specified assistance is
required,
setting forth the period of time during which the provision of the
information, facilities, or technical assistance is authorized and
specifying the information, facilities, or technical assistance required.
No communication common carrier, officer, employee, or agent thereof, Disclosure of
or landlord, custodian, or other specified person shall disclose the information,
existence of any interception or surveillance or the device used to prohibition.
accomplish the interception or surveillance with respect to which the
person has been furnished an order or cei'tification under this
subparagraph, except as may otherwise be required b}'^ legal process
and then only after prior notification to the Attorney General or to
the principal prosecuting attorney of a State or any political
subdivision of a State, as may be appropriate. Any violation of this
s u b p a r a g r a p h by a communication common carrier or an officer,
employee, or agent thereof, shall render the carrier liable for the civil
damages provided for in section 2520. No cause of action shall lie in 18 u s e 2520.
any court against any communication common carrier, its officers,
employees, or agents, landlord, custodian, or other specified person for
providing information, facilities, or assistance in accordance with the
terms of an order or certification under this subparagraph.".
(b) Section 2511(2) is amended by adding at the end thereof 18 u s e 2511.
the following new provisions:
" ( e ) Notwithstanding any other provision of this title or section
605 or 606 of the Communications Act of 1934, it shall not be unlawful 47 u s e 605,
for an officer, employee, or agent of the United States in the normal 606.
course of his official duty to conduct electronic surveillance, avS defined
in section 101 of the Foreign Intelligence Surveillance Act of 1978, as
authorized by t h a t Act.
" ( f ) Nothing contained in this chapter, or section 605 of the
Communications Act of 1934, shall be deemed to affect the acquisition
by the United States Government of foreign intelligence information
from international or foreign communications by a means other than
electronic surveillance as defined in section 101 of the Foreign
Intelligence Surveillance Act of 1978, and procedures in this chapter
and the Foreign Intelligence Surveillance Act of 1978 shall be the
exclusive means by which electronic surveillance, as defined in section
101 of such Act, and the interception of domestic w^ire and oral com-
munications may be conducted.".
(c) Section 2511 (3) is repealed. Repeal.
(d) Section 2518(1) is amended by inserting "under this 18 u s e 2511.
chapter" after "communication". 18 u s e 2518.
(e) Section 2518(4) is amended by inserting "under this
chapter" after both appearances of "wire or oral communication".
(f) Section 2518(9) is amended by striking out "intercepted"
and inserting "intercepted pursuant to this chapter" after
"communication".
92 STAT. 1798 PUBLIC LAW 95-511—OCT. 25, 1978
18 use 2518. (g) Section 2518(10) is amended by striking out "intercepted"
and inserting "intercepted pursuant to this chapter" after the first
appearance of "communication".
18 use 2519. (h) Section 2519(3) is amended by inserting "pursuant to this
chapter" after "wire or oral communications" and after "granted
or denied".
T I T L E I I I — E F F E C T I V E DATE
EFFECTIVE DATE
50 use 1801 SEC. 301. The provisions of this Act and the amendments made
hereby shall become effective upon the date of enactment of this Act,
except that any electronic surveillance approved by the Attorney
General to gather foreign intelligence information shall not be deemed
unlawful for failure to follow the procedures of this Act, if that
surveillance is terminated or an order approving that surveillance is
obtained under title I of this Act within ninety days following the
designation of the first judge pursuant to section 103 of this Act.
Approved October 25, 1978.
LEGISLATIVE HISTORY:
HOUSE REPORTS: No. 95-1283, Pt. I accompanying H.R. 7308 (Comm. on the
Judiciary) and (Select Comm. on Intelligence) and No. 95-1720
(Comm. of Conference).
SENATE REPORTS: No. 95-604 and No. 95-604, Pt. II (Comm. on the Judiciary) and
No. 95-701 (Select Comm. on Intelligence).
CONGRESSIONAL RECORD, Vol. 124 (1978):
Apr. 20, considered and passed Senate.
Sept. 6, 7, considered and passed House, amended.
Sept. 12, Senate disagreed to House amendments.
Oct. 9, Senate agreed to conference report.
Oct. 12, House agreed to conference report.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 14, No. 43:
Oct. 25, Presidential statement.
