During the 110 th Congress, several House and Senate committees have engaged in oversight activities, including hearings and requests for expeditious production of documents and information regarding the Administration's warrantless foreign intelligence surveillance programs, as possible changes to the Foreign Intelligence Surveillance Act of 1978, as amended, were explored. In July 2007, an unclassified summary of the National Intelligence Estimate on "The Terrorist Threat to the U.S. Homeland" was released. It expressed the judgment, in part, that the U.S. Homeland will face a persistent and evolving threat over the next three years, the main threat coming from Islamic terrorist groups and cells, particularly Al Qaeda. On August 2, 2007, the Director of National Intelligence (DNI) released a statement on "Modernization of the Foreign Intelligence Surveillance Act." In his statement, Admiral McConnell viewed such modernization as necessary to respond to technological changes and to meet the Nation's current intelligence collection needs. He deemed it essential for the intelligence community to provide warning of threats to the United States. He perceived two critically needed changes. Second, he contended that liability protection was needed for those who furnished aid to the government in carrying out its foreign intelligence collection efforts. On February 13, 2008, the House rejected H.R. On November 15, 2007, the House passed H.R. After debate, the Senate passed S. 2248 , as amended, by a vote of 68-29. 3773 was taken up, all but the enacting clause was stricken and the text of S. 2248 , as amended, was inserted in lieu thereof. On March 12, 2008, the House Rules Committee reported H.Res. 3773 and the House Amendment to the Senate Amendment

Both the Senate amendment to H.R. For example, the Senate amendment to H.R. While both the House and the Senate provide prospective limitations of liability for those who furnish aid to the government in connection with acquisitions authorized under their respective bills, they differ in their treatment of electronic communication service providers who assisted the government with warrantless electronic surveillance for foreign intelligence purposes between September 11, 2001 and January 17, 2007. Title II of the House amendment provides a procedure by which a court, while taking steps to protect classified information, could examine submissions, arguments and information with respect to which state secrets privilege has been asserted in covered civil actions against such electronic communications service providers and other persons who may have furnished such aid to the government. The Senate bill has no similar provision. 3773 does not address this issue. In the following table, this report provides a detailed side-by-side comparison of the provisions of these two measures, using H.R. (h) "Minimization procedures," with respect to electronic surveillance, 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 minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;
(2) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in subsection (e)(1) of this section, shall not be disseminated in a manner that identifies any United States person, without such person's consent, unless such person's identity is necessary to understand 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 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 1802(a) of this title, 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 72 hours unless a court order under section 1805 of this title is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.
During the 110th Congress, several House and Senate committees have engaged in oversight activities, including hearings and requests for expeditious production of documents and information regarding the Administration's warrantless foreign intelligence surveillance programs, as possible changes to the Foreign Intelligence Surveillance Act of 1978, as amended, (FISA) were explored. In July 2007, an unclassified summary of the National Intelligence Estimate on "The Terrorist Threat to the U.S. Homeland" was released. It expressed the judgment, in part, that the U/S. Homeland will face a persistent and evolving threat over the next three years, the main threat coming from Islamic terrorist groups and cells, particularly Al Qaeda. On August 2, 2007, the Director of National Intelligence (DNI) released a statement on "Modernization of the Foreign Intelligence Surveillance Act." In his statement, Admiral McConnell viewed such modernization as necessary to respond to technological changes and to meet the Nation's current intelligence collection needs. He deemed it essential for the intelligence community to provide warning of threats to the United States. In his view, there were two critically needed changes: that a court order should not be required for gathering foreign intelligence from foreign targets located overseas; and that liability protection was needed for those who furnished aid to the government in carrying out its foreign intelligence collection efforts.
Both the House and the Senate have taken action on proposals to address these concerns, but the measures differ somewhat in content and approach. On November 15, 2007, the U.S. House of Representatives passed H.R. 3773, the RESTORE Act of 2007. On February 12, 2008, the Senate passed S. 2248, as amended, then struck all but the enacting clause of H.R. 3773, and inserted the text of S. 2248, as amended, in its stead. On March 14, 2008, the House passed an amendment to the Senate amendment to H.R. 3773. Both the House amendment and the Senate amendment include significant changes to FISA, including provisions on the acquisition of communications of non-U.S. persons and of U.S. persons abroad. The two bills take different approaches to some issues that have played a significant role in the ongoing debate. For example, the Senate amendment would provide retroactive immunity for electronic communications service providers who assisted the government in intelligence activities between September 11, 2001 and January 17, 2007. The House amendment would provide for presentation to a court, with certain safeguards, of evidence and arguments with respect to which state secrets privilege has been asserted in covered civil actions against such electronic communications service providers and other persons who furnished such aid to the government. The House bill also provides for an audit of the Terrorist Surveillance Program and any other wireless electronic surveillance programs, with reporting requirements, while the Senate bill does not. This report provides an overview, a review of legislative activity, and a detailed side-by-side comparison of the provisions of these two bills.