S 2402
110th CONGRESS
1st Session
S. 2402
To provide for the substitution of the United States in certain
civil actions.
IN THE SENATE OF THE UNITED STATES
December 3, 2007
Mr. SPECTER introduced the following bill; which was read twice and
referred to the Committee on the Judiciary
A BILL
To provide for the substitution of the United States in certain
civil actions.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Foreign Intelligence Surveillance Substitution
Act of 2007'.
SEC. 2. DEFINITIONS.
(1) ASSISTANCE- The term `assistance' means the provision of, or the
provision of access to, information (including communication contents,
communications records, or other information relating to a customer
or communication), facilities, or another form of assistance.
(2) CONTENTS- The term `contents' has the meaning given that term
in section 101(n) of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1801(n)).
(3) COVERED CIVIL ACTION- The term `covered civil action' means a
civil action filed in a Federal or State court that--
(A) alleges that an electronic communication service provider furnished
assistance to an element of the intelligence community; and
(B) seeks monetary or other relief from the electronic communication
service provider related to the provision of such assistance.
(4) ELECTRONIC COMMUNICATION SERVICE PROVIDER- The term `electronic
communication service provider' means--
(A) a telecommunications carrier, as that term is defined in section
3 of the Communications Act of 1934 (47 U.S.C. 153);
(B) a provider of an electronic communication service, as that term
is defined in section 2510 of title 18, United States Code;
(C) a provider of a remote computing service, as that term is defined
in section 2711 of title 18, United States Code;
(D) any other communication service provider who has access to wire
or electronic communications either as such communications are transmitted
or as such communications are stored;
(E) a parent, subsidiary, affiliate, successor, or assignee of an
entity described in subparagraph (A), (B), (C), or (D); or
(F) an officer, employee, or agent of an entity described in subparagraph
(A), (B), (C), (D), or (E).
(5) ELEMENT OF THE INTELLIGENCE COMMUNITY- The term `element of the
intelligence community' means an element of the intelligence community
specified in or designated under section 3(4) of the National Security
Act of 1947 (50 U.S.C. 401a(4)).
SEC. 3. SUBSTITUTION OF THE UNITED STATES IN CERTAIN ACTIONS.
(1) CERTIFICATION- Notwithstanding any other provision of law, a Federal
or State court shall substitute the United States for an electronic
communication service provider with respect to any claim in a covered
civil action as provided in this subsection, if the Attorney General
certifies to that court that--
(A) with respect to that claim, the assistance alleged to have been
provided by the electronic communication service provider was--
(i) provided in connection with an intelligence activity involving
communications that was--
(I) authorized by the President during the period beginning
on September 11, 2001, and ending on January 17, 2007; and
(II) designed to detect or prevent a terrorist attack, or activities
in preparation for a terrorist attack, against the United States;
and
(ii) described in a written request or directive from the Attorney
General or the head of an element of the intelligence community
(or the deputy of such person) to the electronic communication
service provider indicating that the activity was--
(I) authorized by the President; and
(II) determined to be lawful; or
(B) the electronic communication service provider did not provide
the alleged assistance.
(A) IN GENERAL- Except as provided in subparagraph (B), upon receiving
a certification under paragraph (1), a Federal or State court shall--
(i) substitute the United States for the electronic communication
service provider as the defendant as to all claims designated
by the Attorney General in that certification; and
(ii) as to that electronic communication service provider--
(I) dismiss all claims designated by the Attorney General in
that certification; and
(II) enter a final judgment relating to those claims.
(B) CONTINUATION OF CERTAIN CLAIMS- If a certification by the Attorney
General under paragraph (1) states that not all of the alleged assistance
was provided under a written request or directive described in paragraph
(1)(A)(ii), the electronic communication service provider shall
remain as a defendant.
(A) TORT CLAIMS- Upon a substitution under paragraph (2), for any
tort claim--
(i) the claim shall be deemed to have been filed under section
1346(b) of title 28, United States Code, except that sections
2401(b), 2675, and 2680(a) of title 28, United States Code, shall
not apply; and
(ii) notwithstanding any other provision of law, the claim shall
be deemed timely filed against the United States if it was timely
filed against the electronic communication service provider.
(B) CONSTITUTIONAL AND STATUTORY CLAIMS- Upon a substitution under
paragraph (2), for any claim under the Constitution of the United
States or any Federal statute--
(i) the claim shall be deemed to have been filed against the United
States under section 1331 of title 28, United States Code;
(ii) with respect to any claim under a Federal statute that does
not provide a cause of action against the United States, the plaintiff
shall be permitted to amend such claim to substitute, as appropriate,
a cause of action under--
(I) section 704 of title 5, United States Code (commonly known
as the Administrative Procedure Act);
(II) section 2712 of title 18, United States Code; or
(III) section 110 of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1810);
(iii) notwithstanding any other provision of law, the statutes
of limitation applicable to the causes of action identified in
clause (ii) shall not apply to any amended claim under that clause,
and any such cause of action shall be deemed timely filed if any
Federal statutory cause of action against the electronic communication
service provider was timely filed; and
(iv) notwithstanding any other provisions of law, for any amended
claim under clause (ii) the United States shall be deemed a proper
defendant under any statutes described in that clause, and any
plaintiff that had standing to proceed against the original defendant
shall be deemed an aggrieved party for purposes of proceeding
under section 2712 of title 18, United States Code, or section
110 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1810).
(i) IN GENERAL- In a covered civil action in which the United
States is substituted as party-defendant under paragraph (2),
any plaintiff may serve third-party discovery requests to any
electronic communications service provider as to which all claims
are dismissed.
(ii) BINDING THE GOVERNMENT- If a plaintiff in a covered civil
action serves deposition notices under rule 30(b)(6) of the Federal
Rules of Civil Procedure or requests under rule 36 of the Federal
Rules of Civil Procedure for admission upon an electronic communications
service provider as to which all claims were dismissed, the electronic
communications service provider shall be deemed a party-defendant
for purposes rule 30(b)(6) or rule 36 and its answers and admissions
shall be deemed binding upon the Government.
(1) IN GENERAL- For purposes of substitution proceedings under this
section--
(A) a certification under subsection (a) may be provided and reviewed
in camera, ex parte, and under seal; and
(B) for any certification provided and reviewed as described in
subparagraph (A), the court shall not disclose or cause the disclosure
of its contents.
(2) NONDELEGATION- The authority and duties of the Attorney General
under this section shall be performed by the Attorney General or a
designee in a position not lower than the Deputy Attorney General.
(c) Limitations- This section, including any Federal statute cited in
this section that operates as a waiver of sovereign immunity, constitute
the sole waiver of sovereign immunity with respect to any covered civil
action.
(d) Civil Actions in State Court- For purposes of section 1441 of title
28, United States Code, any covered civil action that is brought in
a State court or administrative or regulatory bodies shall be deemed
to arise under the Constitution or laws of the United States and shall
be removable under that section.
(e) Rule of Construction- Except as expressly provided in this section,
nothing in this section may be construed to limit any immunity, privilege,
or defense under any other provision of law, including any privilege,
immunity, or defense that would otherwise have been available to the
United States absent its substitution as party-defendant or had the
United States been the named defendant.
(f) Effective Date and Application- This section shall apply to any
covered civil action pending on or filed after the date of enactment
of this Act.
END
