Electronic Surveillance Modernization Act

Electronic Surveillance Modernization Act - (Sec. 3) Amends the Foreign Intelligence Surveillance Act of 1978 (FISA) to include as an "agent of a foreign power" under FISA a person who is reasonably expected to possess, control, transmit, or receive foreign intelligence information while in the United States, provided that the official making the certification deems such information significant. Redefines "electronic surveillance."

(Sec. 4) Revises provisions allowing the President, through the Attorney General, to authorize electronic surveillance without a court order to acquire foreign intelligence information for up to one year to allow such surveillance if the Attorney General (AG) certifies that: (1) the surveillance is directed at the acquisition of either communications of foreign powers or an agent thereof or technical intelligence from property or premises under the control of a foreign power; and (2) proposed minimization procedures (procedures to ensure the minimization of service disruption and the confidentiality of information received) with respect to such surveillance meet FISA requirements.

Allows the President to authorize the acquisition of foreign intelligence information concerning a person reasonably believed to be outside the United States if the AG certifies that: (1) the acquisition does not constitute electronic surveillance; (2) the acquisition involves obtaining information from a wire or electronic communications service provider either as the information is transmitted or while it is stored; (3) a significant purpose of the acquisition is to obtain foreign intelligence information; and (4) the proposed minimization procedures meet FISA requirements. Outlines legal procedures with respect to directives issued to communications service providers to provide necessary assistance to accomplish the acquisition of such information, including failure to comply, directive challenges, standard of review, and appeals. Allows information obtained from such a surveillance to be used and disclosed without the consent of the U.S. person only in accordance with the established minimization procedures.

Allows a person against whom acquired information is intended to be disclosed at a trial to move to suppress the evidence obtained on the grounds that: (1) the information was unlawfully acquired; or (2) the surveillance or acquisition was not made in accordance with its authorization. Outlines procedures with respect to the review and determination of such motions.

(Sec. 5) Authorizes approving applications for a court order for electronic surveillance of a foreign power or an agent of a foreign power for the purpose of obtaining foreign intelligence information if the President has, by written authorization, empowered the AG to approve applications to the court having jurisdiction and a judge to whom an application is made, notwithstanding any other law, grants such order.

(Sec. 6) Revises provisions concerning applications for court orders to, among other things: (1) remove provisions requiring a detailed description of the information sought; (2) repeal provisions excusing certain application information when the target is a foreign power; and (3) add the Director of the Central Intelligence Agency (CIA) to the list of those officials authorized to request the AG to personally review an application for electronic surveillance of an agent of a foreign power.

(Sec. 7) Revises provisions concerning the issuance of an order to: (1) require the application to be approved when made by a federal officer approved by the AG (currently, when made by the AG upon the President's authorization); (2) repeal provisions excusing certain application information when the target is a foreign power; and (3) allow extensions of an order against a foreign power for up to one year without the current requirement of a judge finding probable cause for the extension. Authorizes an official appointed by the President with the advice and consent of the Senate and designated by the President to authorize electronic surveillance (currently, authorizes only the AG) to authorize the emergency employment of electronic surveillance without a court order if, among other things: (1) the official informs the AG of such surveillance; (2) the AG informs a judge having jurisdiction of such surveillance as soon as practicable, but no more than seven days after the surveillance is authorized; (3) an application for an order for such surveillance is made to such judge as soon as practicable, but no more than seven days after the surveillance is authorized; and (4) such official requires that FISA minimization procedures for the issuance of that order be followed. Requires that, in the absence of a judicial order approving the emergency employment of electronic surveillance, the surveillance shall terminate when the information sought is obtained, when the application for the order is denied, or seven days (currently, 72 hours) after after the time of authorization, whichever is earliest.

Requires that, in any case in which the government makes an application to a judge to conduct electronic surveillance involving communications and the judge grants the application, the judge shall also authorize the installation of pen registers and trap and trace devices to acquire dialing, routing, addressing, and signaling information. Exempts such dialing, routing, addressing, and signaling information from minimization procedures.

(Sec. 8) Requires the destruction of all types of unintentionally acquired communications (currently, only radio communications), unless the AG determines that the contents contain significant foreign intelligence information (or, as in current law, indicate a threat of death or serious bodily harm to any person).

(Sec. 9) Requires each member of the intelligence committees (currently, only the committees themselves) to be informed semiannually by the AG of all electronic surveillance being conducted under FISA. Requires surveillance reports submitted by the AG to include reports on electronic surveillance conducted without a court order.

Amends the National Security Act of 1947 to require the President to ensure that each intelligence committee member (currently, the committees) is notified of any significant anticipated surveillance.

(Sec. 10) States that an order for electronic surveillance or physical search shall remain in force during the authorized period of surveillance notwithstanding the absence of the target from the United States, unless the government files a motion to extinguish the order and the motion is granted.

(Sec. 11) Prohibits any action from being maintained in any court, and any penalty, sanction, or other remedy or relief from being imposed by any court or other body, against any person for an activity arising from any alleged intelligence program involving electronic surveillance that the AG certifies is or was intended to protect the United States from a terrorist attack.

(Sec. 12) Requires reports through 2009, from the Director of the National Security Agency (NSA) to the intelligence committees, on the effectiveness and use of minimization procedures applied to information concerning U.S. persons acquired by means that were considered electronic surveillance before the enactment of this Act but no longer constitute electronic surveillance as of this Act's effective date.