What is the actual difference between the Senate and House bills that ensures that inadvertently intercepted communications with Americans are not disseminated? Is it just a matter of the Senate bill defining the term electronic surveillance to exclude electronic surveillance that involves a foreign target? - Condatis

With regard to your first question, the language difference is slight, but quite meaningful: The House bill requires FISA court pre-collection approval of collection and minimization procedures, while the Senate bill allows the Executive Branch to implement (non-emergency) collection procedures for five days before procedures for the collection or minimization (of 'inadvertently intercepted' communications with Americans) are submitted to the court.

To quote Kate Martin's 3/3 ABA forum comment: "Court involvement ensures that the rules that apply to the surveillance are being followed." In the House bill, those rules would be approved before Intelligence Community dataminers go to work, while in the case of the Senate bill, those rules would not even be submitted for court review for up to five days after the IC has commenced operations (which doesn't count the time before the FISC can render an opinion on the complicated procedures, once submitted).

The Senate [Rockefeller/White House/Intelligence Committee] bill language:

"(a) AUTHORIZATION.—Notwithstanding any other law, the Attorney General and the Director of National Intelligence may authorize jointly, for periods of up to 1 year, the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.

...

(e) MINIMIZATION PROCEDURES.—

(1) REQUIREMENT TO ADOPT.—The Attorney General, in consultation with the Director of National Intelligence, shall adopt, consistent with the requirements of section 101(h) or section 301(4), minimization procedures for acquisitions authorized under subsection (a).

(2) JUDICIAL REVIEW.—The minimization procedures required by this subsection shall be subject to judicial review pursuant to subsection (h)."

Subsection (h):

"(h) JUDICIAL REVIEW OF CERTIFICATIONS AND PROCEDURES.—

(1) IN GENERAL.—

(A) REVIEW BY THE FOREIGN INTELLIGENCE SURVEILLANCE COURT.—The Foreign Intelligence Surveillance Court shall have jurisdiction to review any certification required by subsection (c) and the targeting and minimization procedures adopted pursuant to subsections (d) and (e).

(B) SUBMISSION TO THE COURT.—The Attorney General shall submit to the Court any such certification or procedure, or amendment thereto, not later than 5 days after making or amending the certification or adopting or amending the procedures.

(2) CERTIFICATIONS.—The Court shall review a certification provided under subsection (f) to determine whether the certification contains all the required elements.

(3) TARGETING PROCEDURES.—The Court shall review the targeting procedures required by subsection (d) to assess whether the procedures are reasonably designed to...[snip]...

(4) MINIMIZATION PROCEDURES.—The Court shall review the minimization procedures required by subsection (e) to assess whether such procedures meet the definition of minimization procedures under section 101(h) or section 301(4).

(5) ORDERS.—

(A) APPROVAL.—If the Court finds that a certification required by subsection (f) contains all of the required elements and that the targeting and minimization procedures required by subsections (d) and (e) are consistent with the requirements of those subsections and with the fourth amendment to the Constitution of the United States, the Court shall enter an order approving the continued use of the procedures for the acquisition authorized under subsection (a).

- Senate-passed bill

The revised House bill's language (also modeled on the Protect America Act):

"(a)AUTHORIZATION.— Notwithstanding any other provision of law, pursuant to an order issued in accordance with subsection (i)(3) or a determination under subsection (g)(1)(B), the Attorney General and the Director of National Intelligence may authorize jointly...[snip]...

...

(i) JUDICIAL REVIEW OF CERTIFICATIONS AND PROCEDURES.—

(1) IN GENERAL.—

(A) REVIEW BY THE FOREIGN INTELLIGENCE SURVEILLANCE COURT.— The Foreign Intelligence Surveillance Court shall have jurisdiction to review any certification submitted pursuant to subsection (g) and the targeting and minimization procedures required by subsections (d) and (e).

...

(C) MINIMIZATION PROCEDURES.—The minimization procedures required by subsection (e) to assess whether such procedures meet the definition of minimization procedures under section 101(h) or section 301(4) in accordance with subsection (e).

(3) ORDERS.—

(A) APPROVAL.— If the Court finds that a certification submitted pursuant to subsection (g) contains all of the required elements and that the procedures required by subsections (d) and (e) are consistent with the requirements of those subsections and with the fourth amendment to the Constitution of the United States, the Court shall enter an order approving the certification and the use of the procedures for the acquisition."

- H.R. 3773, as amended 3/14/08

With regard to your second question, here's an excerpt (with my elaborations in brackets) from the House Judiciary Committee's 10/2007 Report on RESTORE that explains the significance of the Senate bill's exclusion of certain domestic surveillance acquisitions from FISA's definition of electronic surveillance:

As noted above, section 2 of the RESTORE Act settles the issue of "foreign-to-foreign" [apparently U.S.-stored email] communications, making clear that purely foreign communications do not require a FISA warrant and that foreign targets abroad are not to be extended Constitutional protections [presumably when intercepted on U.S. soil and/or while in communication with an American]. Unlike the PAA [and the Senate bill], however, the RESTORE Act does not accomplish this by exempting such [stored email, presumably] acquisitions from FISA's definitions of electronic surveillance. That [Senate] approach has undercut other vital aspects of FISA that ensured that law-abiding Americans had legal protection against inappropriate acquisition and distribution of their private communications. - HJC Report

Http://www.rules.house.gov/110/text/110_hr3773rpt_judiciary.pdf

So the amended House bill avoids that particular pitfall, includes a significant safeguard by requiring court-reviewed guidelines to limit what (domestic) data can be collected in the first place, in addition to requiring pre-approval from the court before that collection can begin.

Finally, yes, I'd say that the 702(g)(3) language you excerpted helps to facilitate, along with other provisions and "reasonably believed" caveats, the 'group-based' collection authorizations and procedures these bills provide for. The HJC Report states clearly on Page 13 about RESTORE: "Collectively these judicial responsibilities still permit programmatic surveillance based on certifications by the Attorney General..."