S 2441
Calendar No. 530
110th CONGRESS
1st Session
S. 2441
To amend the Foreign Intelligence Surveillance Act of 1978,
to modernize and streamline the provisions of that Act, and for other
purposes.
IN THE SENATE OF THE UNITED STATES
December 10, 2007
Mr. REID introduced the following bill; which was read the first time
December 11, 2007
Read the second time and placed on the calendar
A BILL
To amend the Foreign Intelligence Surveillance Act of 1978,
to modernize and streamline the provisions of that Act, and for other
purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title- This Act may be cited as the `Foreign Intelligence
Surveillance Act of 1978 Amendments Act of 2007' or the `FISA Amendments
Act of 2007'.
(b) Table of Contents- The table of contents for this Act is as follows:
Sec. 1. Short title; table of contents.
TITLE I--FOREIGN INTELLIGENCE SURVEILLANCE
Sec. 101. Targeting the communications of certain persons outside
the United States.
Sec. 102. Statement of exclusive means by which electronic surveillance
and interception of certain communications may be conducted.
Sec. 103. Submittal to Congress of certain court orders under the
Foreign Intelligence Surveillance Act of 1978.
Sec. 104. Applications for court orders.
Sec. 105. Issuance of an order.
Sec. 106. Use of information.
Sec. 107. Amendments for physical searches.
Sec. 108. Amendments for emergency pen registers and trap and trace
devices.
Sec. 109. Foreign Intelligence Surveillance Court.
Sec. 110. Review of previous actions.
Sec. 111. Technical and conforming amendments.
TITLE II--PROTECTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS
Sec. 202. Limitations on civil actions for electronic communication
service providers.
Sec. 203. Procedures for implementing statutory defenses under the
Foreign Intelligence Surveillance Act of 1978.
Sec. 204. Preemption of State investigations.
Sec. 205. Technical amendments.
TITLE III--OTHER PROVISIONS
Sec. 302. Effective date; repeal; transition procedures.
TITLE I--FOREIGN INTELLIGENCE SURVEILLANCE
SEC. 101. TARGETING THE COMMUNICATIONS OF CERTAIN PERSONS OUTSIDE
THE UNITED STATES.
(a) In General- The Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.) is amended--
(1) by striking title VII; and
(2) by adding after title VI the following new title:
`TITLE VII--ADDITIONAL PROCEDURES FOR TARGETING COMMUNICATIONS OF
CERTAIN PERSONS OUTSIDE THE UNITED STATES
`SEC. 701. DEFINITIONS.
`(1) IN GENERAL- The terms `agent of a foreign power', `Attorney General',
`contents', `electronic surveillance', `foreign intelligence information',
`foreign power', `minimization procedures', `person', `United States',
and `United States person' shall have the meanings given such terms
in section 101.
`(2) ADDITIONAL DEFINITIONS-
`(A) CONGRESSIONAL INTELLIGENCE COMMITTEES- The term `congressional
intelligence committees' means--
`(i) the Select Committee on Intelligence of the Senate; and
`(ii) the Permanent Select Committee on Intelligence of the House
of Representatives.
`(B) FOREIGN INTELLIGENCE SURVEILLANCE COURT; COURT- The terms `Foreign
Intelligence Surveillance Court' and `Court' mean the court established
by section 103(a).
`(C) FOREIGN INTELLIGENCE SURVEILLANCE COURT OF REVIEW; COURT OF
REVIEW- The terms `Foreign Intelligence Surveillance Court of Review'
and `Court of Review' mean the court established by section 103(b).
`(D) ELECTRONIC COMMUNICATION SERVICE PROVIDER- The term `electronic
communication service provider' means--
`(i) a telecommunications carrier, as that term is defined in
section 3 of the Communications Act of 1934 (47 U.S.C. 153);
`(ii) a provider of electronic communications service, as that
term is defined in section 2510 of title 18, United States Code;
`(iii) a provider of a remote computing service, as that term
is defined in section 2711 of title 18, United States Code;
`(iv) 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; or
`(v) an officer, employee, or agent of an entity described in
clause (i), (ii), (iii), or (iv).
`(E) 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. 702. PROCEDURES FOR ACQUIRING THE COMMUNICATIONS OF CERTAIN
PERSONS OUTSIDE THE UNITED STATES.
`(a) Authorization- Notwithstanding any other provision of law, including
title I, 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.
`(b) Limitations- An acquisition authorized under subsection (a)--
`(1) may not intentionally target any person known at the time of
acquisition to be located in the United States;
`(2) may not intentionally target a person reasonably believed to
be outside the United States if a significant purpose of such acquisition
is to acquire the communications of a specific person reasonably believed
to be located in the United States, except in accordance with title
I; and
`(3) shall be conducted in a manner consistent with the fourth amendment
to the Constitution of the United States.
`(c) United States Persons Located Outside the United States-
`(1) ACQUISITION INSIDE THE UNITED STATES OF UNITED STATES PERSONS
OUTSIDE THE UNITED STATES- An acquisition authorized under subsection
(a) that constitutes electronic surveillance and occurs inside the
United States may not intentionally target a United States person
reasonably believed to be outside the United States, except in accordance
with the procedures under title I.
`(2) ACQUISITION OUTSIDE THE UNITED STATES OF UNITED STATES PERSONS
OUTSIDE THE UNITED STATES-
`(A) IN GENERAL- An acquisition by an electronic, mechanical, or
other surveillance device outside the United States may not intentionally
target a United States person reasonably believed to be outside
the United States to acquire the contents of a wire or radio communication
sent by or intended to be received by that United States person
under circumstances in which a person has reasonable expectation
of privacy and a warrant would be required for law enforcement purposes
if the technique were used inside the United States unless--
`(i) the Foreign Intelligence Surveillance Court has entered an
order approving electronic surveillance of that United States
person under section 105, or in the case of an emergency situation,
electronic surveillance against the target is being conducted
in a manner consistent with title I; or
`(ii)(I) the Foreign Intelligence Surveillance Court has entered
a order under subparagraph (B) that there is probable cause to
believe that the United States person is a foreign power or an
agent of a foreign power;
`(II) the Attorney General has established minimization procedures
for that acquisition that meet the definition of minimization
procedures under section 101(h); and
`(III) the dissemination provisions of the minimization procedures
described in subclause (II) have been approved under subparagraph
(C).
`(B) PROBABLE CAUSE DETERMINATION; REVIEW-
`(i) IN GENERAL- The Attorney General may submit to the Foreign
Intelligence Surveillance Court the determination of the Attorney
General, together with any supporting affidavits, that a United
States person who is outside the United States is a foreign power
or an agent of a foreign power.
`(ii) REVIEW- The Court shall review, any probable cause determination
submitted by the Attorney General under this subparagraph. The
review under this clause shall be limited to whether, on the basis
of the facts submitted by the Attorney General, there is probable
cause to believe that the United States person who is outside
the United States is a foreign power or an agent of a foreign
power.
`(iii) ORDER- If the Court, after conducting a review under clause
(ii), determines that there is probable cause to believe that
the United States person is a foreign power or an agent of a foreign
power, the court shall issue an order approving the acquisition.
An order under this clause shall be effective for 90 days, and
may be renewed for additional 90-day periods.
`(iv) NO PROBABLE CAUSE- If the Court, after conducting a review
under clause (ii), determines that there is not probable cause
to believe that a United States person is a foreign power or an
agent of a foreign power, it shall enter an order so stating and
provide a written statement for the record of the reasons for
such determination. The Government may appeal an order under this
clause to the Foreign Intelligence Surveillance Court of Review.
`(C) REVIEW OF MINIMIZATION PROCEDURES-
`(i) IN GENERAL- The Foreign Intelligence Surveillance Court shall
review the minimization procedures applicable to dissemination
of information obtained through an acquisition authorized under
subparagraph (A) to assess whether such procedures meet the definition
of minimization procedures under section 101(h) with respect to
dissemination.
`(ii) REVIEW- The Court shall issue an order approving the procedures
applicable to dissemination as submitted or as modified to comply
with section 101(h).
`(iii) PROCEDURES DO NOT MEET DEFINITION- If the Court determines
that the procedures applicable to dissemination of information
obtained through an acquisition authorized under subparagraph
(A) do not meet the definition of minimization procedures under
section 101(h) with respect to dissemination, it shall enter an
order so stating and provide a written statement for the record
of the reasons for such determination. The Government may appeal
an order under this clause to the Foreign Intelligence Surveillance
Court of Review.
`(D) EMERGENCY PROCEDURES-
`(i) IN GENERAL- Notwithstanding any other provision of this paragraph,
the Attorney General may authorize the emergency employment of
an acquisition under subparagraph (A) if the Attorney General--
`(I) reasonably determines that--
`(aa) an emergency situation exists with respect to the employment
of an acquisition under subparagraph (A) before a determination of probable
cause can with due diligence be obtained; and
`(bb) the factual basis for issuance of a determination under
subparagraph (B) to approve such an acquisition exists;
`(II) informs a judge of the Foreign Intelligence Surveillance
Court at the time of such authorization that the decision has
been made to employ an emergency acquisition;
`(III) submits a request in accordance with subparagraph (B)
to the judge notified under subclause (II) as soon as practicable,
but later than 72 hours after the Attorney General authorizes
such an acquisition; and
`(IV) requires that minimization procedures meeting the definition
of minimization procedures under section 101(h) be followed.
`(ii) TERMINATION- In the absence of a judicial determination
finding probable cause to believe that the United States person
that is the subject of an emergency employment of an acquisition
under clause (i) is a foreign power or an agent of a foreign power,
the emergency employment of an acquisition under clause (i) shall
terminate when the information sought is obtained, when the request
for a determination is denied, or after the expiration of 72 hours
from the time of authorization by the Attorney General, whichever
is earliest.
`(iii) USE OF INFORMATION- If the Court determines that there
is not probable cause to believe that a United States is a foreign
power or an agent of a foreign power in response to a request
for a determination under clause (i)(III), or in any other case
where the emergency employment of an acquisition under this subparagraph
is terminated and no determination finding probable cause is issued,
no information obtained or evidence derived from such acquisition
shall be received in evidence or otherwise disclosed in any trial,
hearing, or other proceeding in or before any court, grand jury,
department, 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 acquisition shall subsequently
be used or disclosed in any other manner by Federal officers or
employees without the consent of such person, except with the
approval of the Attorney General if the information indicates
a threat of death or serious bodily harm to any person.
`(A) SUBMITTAL TO FOREIGN INTELLIGENCE SURVEILLANCE COURT- Not later
than 30 days after the date of the enactment of the FISA Amendments
Act of 2007, the Attorney General shall submit to the Foreign Intelligence
Surveillance Court the procedures to be used in determining whether
a target reasonably believed to be outside the United States is
a United States person.
`(B) REVIEW BY FOREIGN INTELLIGENCE SURVEILLANCE COURT- The Foreign
Intelligence Surveillance Court shall review, the procedures submitted
under subparagraph (A), and shall approve those procedures if they
are reasonably designed to determine whether a target reasonably
believed to be outside the United States is a United States person.
If the Court concludes otherwise, the Court shall enter an order
so stating and provide a written statement for the record of the
reasons for such determination. The Government may appeal such an
order to the Foreign Intelligence Surveillance Court of Review.
`(C) USE IN TARGETING- Any targeting of persons reasonably believed
to be located outside the United States shall use the procedures
approved by the Foreign Intelligence Surveillance Court under subparagraph
(B). Any new or amended procedures may be used with respect to the
targeting of persons reasonably believed to be located outside the
United States upon approval of the new or amended procedures by
the Court, which shall review such procedures under paragraph (B).
`(4) TRANSITION PROCEDURES CONCERNING THE TARGETING OF UNITED STATES
PERSONS OVERSEAS- Any authorization in effect on the date of enactment
of the FISA Amendments Act of 2007 under section 2.5 of Executive
Order 12333 to intentionally target a United States person reasonably
believed to be located outside the United States, to acquire the contents
of a wire or radio communication sent by or intended to be received
by that United States person, shall remain in effect, and shall constitute
a sufficient basis for conducting such an acquisition of a United
States person located outside the United States, until that authorization
expires or 90 days after the date of enactment of the FISA Amendments
Act of 2007, whichever is earlier.
`(d) Conduct of Acquisition- An acquisition authorized under subsection
(a) may be conducted only in accordance with--
`(1) a certification made by the Attorney General and the Director
of National Intelligence pursuant to subsection (g); and
`(2) the targeting and minimization procedures required pursuant to
subsections (e) and (f).
`(e) Targeting Procedures-
`(1) REQUIREMENT TO ADOPT- The Attorney General, in consultation with
the Director of National Intelligence, shall adopt targeting procedures
that are reasonably designed to ensure that any acquisition authorized
under subsection (a) is limited to targeting persons reasonably believed
to be located outside the United States, and that an application is
filed under title I, if otherwise required, when a significant purpose
of an acquisition authorized under subsection (a) is to acquire the
communications of a specific person reasonably believed to be located
in the United States.
`(2) JUDICIAL REVIEW- The procedures referred to in paragraph (1)
shall be subject to judicial review pursuant to subsection (i).
`(f) 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), 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
(i).
`(A) REQUIREMENT- Subject to subparagraph (B), prior to the initiation
of an acquisition authorized under subsection (a), the Attorney
General and the Director of National Intelligence shall provide,
under oath, a written certification, as described in this subsection.
`(B) EXCEPTION- If the Attorney General and the Director of National
Intelligence determine that immediate action by the Government is
required and time does not permit the preparation of a certification
under this subsection prior to the initiation of an acquisition,
the Attorney General and the Director of National Intelligence shall
prepare such certification, including such determination, as soon
as possible but in no event more than 168 hours after such determination
is made.
`(2) REQUIREMENTS- A certification made under this subsection shall--
`(i) there are reasonable procedures in place for determining
that the acquisition authorized under subsection (a) is targeted
at persons reasonably believed to be located outside the United
States and that such procedures have been approved by, or will
promptly be submitted for approval by, the Foreign Intelligence
Surveillance Court pursuant to subsection (i);
`(ii) the procedures referred to in clause (i) are consistent
with the requirements of the fourth amendment to the Constitution
of the United States and do not permit the intentional targeting
of any person who is known at the time of acquisition to be located
in the United States;
`(iii) the procedures referred to in clause (i) require that an
application is filed under title I, if otherwise required, when
a significant purpose of an acquisition authorized under subsection
(a) is to acquire the communications of a specific person reasonably
believed to be located in the United States;
`(iv) a significant purpose of the acquisition is to obtain foreign
intelligence information;
`(v) the minimization procedures to be used with respect to such
acquisition--
`(I) meet the definition of minimization procedures under section
101(h); and
`(II) have been approved by, or will promptly be submitted for
approval by, the Foreign Intelligence Surveillance Court pursuant
to subsection (i);
`(vi) the acquisition involves obtaining the foreign intelligence
information from or with the assistance of an electronic communication
service provider; and
`(vii) the acquisition is limited to communications to which at
least 1 party is a specific individual target who is reasonably
believed to be located outside of the United States, and a significant
purpose of the acquisition of the communications of any target
is to obtain foreign intelligence information; and
`(B) be supported, as appropriate, by the affidavit of any appropriate
official in the area of national security who is--
`(i) appointed by the President, by and with the consent of the
Senate; or
`(ii) the head of any element of the intelligence community.
`(3) LIMITATION- A certification made under this subsection is not
required to identify the specific facilities, places, premises, or
property at which the acquisition authorized under subsection (a)
will be directed or conducted.
`(4) SUBMISSION TO THE COURT- The Attorney General shall transmit
a copy of a certification made under this subsection, and any supporting
affidavit, under seal to the Foreign Intelligence Surveillance Court
as soon as possible, but in no event more than 5 days after such certification
is made. Such certification shall be maintained under security measures
adopted by the Chief Justice of the United States and the Attorney
General, in consultation with the Director of National Intelligence.
`(5) REVIEW- The certification required by this subsection shall be
subject to judicial review pursuant to subsection (i).
`(1) AUTHORITY- With respect to an acquisition authorized under subsection
(a), the Attorney General and the Director of National Intelligence
may direct, in writing, an electronic communication service provider
to--
`(A) immediately provide the Government with all information, facilities,
or assistance necessary to accomplish the acquisition in a manner
that will protect the secrecy of the acquisition and produce a minimum
of interference with the services that such electronic communication
service provider is providing to the target; and
`(B) maintain under security procedures approved by the Attorney
General and the Director of National Intelligence any records concerning
the acquisition or the aid furnished that such electronic communication
service provider wishes to maintain.
`(2) COMPENSATION- The Government shall compensate, at the prevailing
rate, an electronic communication service provider for providing information,
facilities, or assistance pursuant to paragraph (1).
`(3) RELEASE FROM LIABILITY- Notwithstanding any other law, no cause
of action shall lie in any court against any electronic communication
service provider for providing any information, facilities, or assistance
in accordance with a directive issued pursuant to paragraph (1).
`(4) CHALLENGING OF DIRECTIVES-
`(A) AUTHORITY TO CHALLENGE- An electronic communication service
provider receiving a directive issued pursuant to paragraph (1)
may challenge the directive by filing a petition with the Foreign
Intelligence Surveillance Court.
`(B) ASSIGNMENT- The presiding judge of the Court shall assign the
petition filed under subparagraph (A) to 1 of the judges serving
in the pool established by section 103(e)(1) not later than 24 hours
after the filing of the petition.
`(C) STANDARDS FOR REVIEW- A judge considering a petition to modify
or set aside a directive may grant such petition only if the judge
finds that the directive does not meet the requirements of this
section or is otherwise unlawful. If the judge does not modify or
set aside the directive, the judge shall immediately affirm such
directive, and order the recipient to comply with the directive.
The judge shall provide a written statement for the record of the
reasons for a determination under this paragraph.
`(D) CONTINUED EFFECT- Any directive not explicitly modified or
set aside under this paragraph shall remain in full effect.
`(5) ENFORCEMENT OF DIRECTIVES-
`(A) ORDER TO COMPEL- In the case of a failure to comply with a
directive issued pursuant to paragraph (1), the Attorney General
may file a petition for an order to compel compliance with the directive
with the Foreign Intelligence Surveillance Court.
`(B) ASSIGNMENT- The presiding judge of the Court shall assign a
petition filed under subparagraph (A) to 1 of the judges serving
in the pool established by section 103(e)(1) not later than 24 hours
after the filing of the petition.
`(C) STANDARDS FOR REVIEW- A judge considering a petition shall
issue an order requiring the electronic communication service provider
to comply with the directive if the judge finds that the directive
was issued in accordance with paragraph (1), meets the requirements
of this section, and is otherwise lawful. The judge shall provide
a written statement for the record of the reasons for a determination
under this paragraph.
`(D) CONTEMPT OF COURT- Failure to obey an order of the Court issued
under this paragraph may be punished by the Court as contempt of
court.
`(E) PROCESS- Any process under this paragraph may be served in
any judicial district in which the electronic communication service
provider may be found.
`(A) APPEAL TO THE COURT OF REVIEW- The Government or an electronic
communication service provider receiving a directive issued pursuant
to paragraph (1) may file a petition with the Foreign Intelligence
Surveillance Court of Review for review of the decision issued pursuant
to paragraph (4) or (5) not later than 7 days after the issuance
of such decision. The Court of Review shall have jurisdiction to
consider such a petition and shall provide a written statement for
the record of the reasons for a decision under this paragraph.
`(B) CERTIORARI TO THE SUPREME COURT- The Government or an electronic
communication service provider receiving a directive issued pursuant
to paragraph (1) may file a petition for a writ of certiorari for
review of the decision of the Court of Review issued under subparagraph
(A). The record for such review shall be transmitted under seal
to the Supreme Court of the United States, which shall have jurisdiction
to review such decision.
`(A) REVIEW BY THE FOREIGN INTELLIGENCE SURVEILLANCE COURT- The
Foreign Intelligence Surveillance Court shall have jurisdiction
to review any certification required by subsection (d) or targeting
and minimization procedures adopted pursuant to subsections (e)
and (f).
`(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 (g) to determine whether the certification contains
all the required elements.
`(3) TARGETING PROCEDURES- The Court shall review the targeting procedures
required by subsection (e) to assess whether the procedures are reasonably
designed to ensure that the acquisition authorized under subsection
(a) is limited to the targeting of persons reasonably believed to
be located outside the United States, and are reasonably designed
to ensure that an application is filed under title I, if otherwise
required, when a significant purpose of an acquisition authorized
under subsection (a) is to acquire the communications of a specific
person reasonably believed to be located in the United States.
`(4) MINIMIZATION PROCEDURES- The Court shall review the minimization
procedures required by subsection (f) to assess whether such procedures
meet the definition of minimization procedures under section 101(h).
`(A) APPROVAL- If the Court finds that a certification required
by subsection (g) contains all of the required elements and that
the targeting and minimization procedures required by subsections
(e) and (f) 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).
`(B) CORRECTION OF DEFICIENCIES-
`(i) IN GENERAL- If the Court finds that a certification required
by subsection (g) does not contain all of the required elements,
or that the procedures required by subsections (e) and (f) are
not consistent with the requirements of those subsections or the
fourth amendment to the Constitution of the United States, the
Court shall issue an order directing the Government to, at the
Government's election and to the extent required by the Court's
order--
`(I) correct any deficiency identified by the Court's order
not later than 30 days after the date the Court issues the order;
or
`(II) cease the acquisition authorized under subsection (a).
`(ii) LIMITATION ON USE OF INFORMATION-
`(I) IN GENERAL- Except as provided in subclause (II), no information
obtained or evidence derived from an acquisition under clause
(i)(I) shall be received in evidence or otherwise disclosed
in any trial, hearing, or other proceeding in or before any
court, grand jury, department, 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 acquisition
shall subsequently be used or disclosed in any other manner
by Federal officers or employees without the consent of such
person, except with the approval of the Attorney General if
the information indicates a threat of death or serious bodily
harm to any person.
`(II) EXCEPTION- If the Government corrects any deficiency identified
by the Court's order under clause (i), the Court may permit
the use or disclosure of information acquired before the date
of the correction pursuant to such minimization procedures as
the Court shall establish for purposes of this clause.
`(C) REQUIREMENT FOR WRITTEN STATEMENT- In support of its orders
under this subsection, the Court shall provide, simultaneously with
the orders, for the record a written statement of its reasons.
`(A) APPEAL TO THE COURT OF REVIEW- The Government may appeal any
order under this section to the Foreign Intelligence Surveillance
Court of Review, which shall have jurisdiction to review such order.
For any decision affirming, reversing, or modifying an order of
the Foreign Intelligence Surveillance Court, the Court of Review
shall provide for the record a written statement of its reasons.
`(B) STAY PENDING APPEAL- The Government may move for a stay of
any order of the Foreign Intelligence Surveillance Court under paragraph
(5)(B)(i) pending review by the Court en banc or pending appeal
to the Foreign Intelligence Surveillance Court of Review.
`(C) CERTIORARI TO THE SUPREME COURT- The Government may file a
petition for a writ of certiorari for review of a decision of the
Court of Review issued under subparagraph (A). The record for such
review shall be transmitted under seal to the Supreme Court of the
United States, which shall have jurisdiction to review such decision.
`(7) COMPLIANCE REVIEW- The Court may review and assess compliance
with the minimization procedures submitted to the Court pursuant to
subsections (c) and (f) by reviewing the semiannual assessments submitted
by the Attorney General and the Director of National Intelligence
pursuant to subsection (l)(1) with respect to compliance with minimization
procedures. In conducting a review under this paragraph, the Court
may, to the extent necessary, require the Government to provide additional
information regarding the acquisition, retention, or dissemination
of information concerning United States persons during the course
of an acquisition authorized under subsection (a).
`(8) REMEDIAL AUTHORITY- The Foreign Intelligence Surveillance Court
shall have authority to fashion remedies as necessary to enforce--
`(A) any order issued under this section; and
`(B) compliance with any such order.
`(j) Judicial Proceedings- Judicial proceedings under this section shall
be conducted as expeditiously as possible.
`(k) Maintenance of Records-
`(1) STANDARDS- A record of a proceeding under this section, including
petitions filed, orders granted, and statements of reasons for decision,
shall be maintained under security measures adopted by the Chief Justice
of the United States, in consultation with the Attorney General and
the Director of National Intelligence.
`(2) FILING AND REVIEW- All petitions under this section shall be
filed under seal. In any proceedings under this section, the court
shall, upon request of the Government, review ex parte and in camera
any Government submission, or portions of a submission, which may
include classified information.
`(3) RETENTION OF RECORDS- A directive made or an order granted under
this section shall be retained for a period of not less than 10 years
from the date on which such directive or such order is made.
`(1) SEMIANNUAL ASSESSMENT- Not less frequently than once every 6
months, the Attorney General and Director of National Intelligence
shall assess compliance with the targeting and minimization procedures
required by subsections (c), (e), and (f) and shall submit each such
assessment to--
`(A) the Foreign Intelligence Surveillance Court; and
`(B) the congressional intelligence committees.
`(2) AGENCY ASSESSMENT- The Inspectors General of the Department of
Justice and of any element of the intelligence community authorized
to acquire foreign intelligence information under subsection (a)--
`(A) are authorized to review the compliance of their agency or
element with the targeting and minimization procedures required
by subsections (c), (e), and (f);
`(B) with respect to acquisitions authorized under subsection (a),
shall review the number of disseminated intelligence reports containing
a reference to a United States person identity and the number of
United States person identities subsequently disseminated by the
element concerned in response to requests for identities that were
not referred to by name or title in the original reporting;
`(C) with respect to acquisitions authorized under subsection (a),
shall review the number of targets that were later determined to
be located in the United States and the number of persons located
in the United States whose communications were reviewed; and
`(D) shall provide each such review to--
`(i) the Attorney General;
`(ii) the Director of National Intelligence; and
`(iii) the congressional intelligence committees.
`(A) REQUIREMENT TO CONDUCT- The head of an element of the intelligence
community conducting an acquisition authorized under subsection
(a) shall direct the element to conduct an annual review to determine
whether there is reason to believe that foreign intelligence information
has been or will be obtained from the acquisition. The annual review
shall provide, with respect to such acquisitions authorized under
subsection (a)--
`(i) an accounting of the number of disseminated intelligence
reports containing a reference to a United States person identity;
`(ii) an accounting of the number of United States person identities
subsequently disseminated by that element in response to requests
for identities that were not referred to by name or title in the
original reporting; and
`(iii) the number of targets that were later determined to be
located in the United States and the number of persons located
in the United States whose communications were reviewed.
`(B) USE OF REVIEW- The head of each element of the intelligence
community that conducts an annual review under subparagraph (A)
shall use each such review to evaluate the adequacy of the minimization
procedures utilized by such element or the application of the minimization
procedures to a particular acquisition authorized under subsection
(a).
`(C) PROVISION OF REVIEW TO FOREIGN INTELLIGENCE SURVEILLANCE COURT-
The head of each element of the intelligence community that conducts
an annual review under subparagraph (A) shall provide such review
to the Foreign Intelligence Surveillance Court.
`(4) REPORTS TO CONGRESS-
`(A) SEMIANNUAL REPORT- Not less frequently than once every 6 months,
the Attorney General shall fully inform, in a manner consistent
with national security, the congressional intelligence committees,
the Committee on the Judiciary of the Senate, and the Committee
on the Judiciary of the House of Representatives, concerning the
implementation of this Act.
`(B) CONTENT- Each report made under subparagraph (A) shall include--
`(i) any certifications made under subsection (g) during the reporting
period;
`(ii) any directives issued under subsection (h) during the reporting
period;
`(iii) the judicial review during the reporting period of any
such certifications and targeting and minimization procedures
utilized with respect to such acquisition, including a copy of
any order or pleading in connection with such review that contains
a significant legal interpretation of the provisions of this Act;
`(iv) any actions taken to challenge or enforce a directive under
paragraphs (4) or (5) of subsections (h);
`(v) any compliance reviews conducted by the Department of Justice
or the Office of the Director of National Intelligence of acquisitions
authorized under subsection (a);
`(vi) a description of any incidents of noncompliance with a directive
issued by the Attorney General and the Director of National Intelligence
under subsection (h), including--
`(I) incidents of noncompliance by an element of the intelligence
community with procedures adopted pursuant to subsections (c),
(e), and (f); and
`(II) incidents of noncompliance by a specified person to whom
the Attorney General and Director of National Intelligence issued
a directive under subsection (h);
`(vii) any procedures implementing this section; and
`(viii) any annual review conducted pursuant to paragraph (3).
`SEC. 703. USE OF INFORMATION ACQUIRED UNDER SECTION 702.
`Information acquired from an acquisition conducted under section 702
shall be deemed to be information acquired from an electronic surveillance
pursuant to title I for purposes of section 106, except for the purposes
of subsection (j) of such section.'.
(b) Table of Contents- The table of contents in the first section of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.) is amended--
(1) by striking the item relating to title VII;
(2) by striking the item relating to section 701; and
(3) by adding at the end the following:
`TITLE VII--ADDITIONAL PROCEDURES FOR TARGETING COMMUNICATIONS OF
CERTAIN PERSONS OUTSIDE THE UNITED STATES
`Sec. 702. Procedures for acquiring the communications of certain
persons outside the United States.
`Sec. 703. Use of information acquired under section 702.'.
(1) IN GENERAL- Except as provided in paragraph (2), the amendments
made by subsections (a)(2) and (b) shall cease to have effect on December
31, 2011.
(2) CONTINUING APPLICABILITY- Section 702(h)(3) of the Foreign Intelligence
Surveillance Act of 1978 (as amended by subsection (a)) shall remain
in effect with respect to any directive issued pursuant to section
702(h) of that Act (as so amended) during the period such directive
was in effect. The use of information acquired by an acquisition conducted
under section 702 of that Act (as so amended) shall continue to be
governed by the provisions of section 703 of that Act (as so amended).
SEC. 102. STATEMENT OF EXCLUSIVE MEANS BY WHICH ELECTRONIC SURVEILLANCE
AND INTERCEPTION OF CERTAIN COMMUNICATIONS MAY BE CONDUCTED.
(a) Statement of Exclusive Means- Title I of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended by adding
at the end the following new section:
`STATEMENT OF EXCLUSIVE MEANS BY WHICH ELECTRONIC SURVEILLANCE AND
INTERCEPTION OF CERTAIN COMMUNICATIONS MAY BE CONDUCTED
`Sec. 112. (a) This Act shall be the exclusive means for targeting United
States persons for the purpose of acquiring their communications or
communications information for foreign intelligence purposes, whether
such persons are inside the United States or outside the United States,
except in cases where specific statutory authorization exists to obtain
communications information without an order under this Act.
`(b) Chapters 119 and 121 of title 18, United States Code, and this
Act shall be the exclusive means by which electronic surveillance and
the interception of domestic wire, oral, or electronic communications
may be conducted.
`(c) Subsections (a) and (b) shall apply unless specific statutory authorization
for electronic surveillance, other than as an amendment to this Act,
is enacted. Such specific statutory authorization shall be the only
exception to subsection (a) and (b).'.
(b) Conforming Amendments-
(1) IN GENERAL- Section 2511(2)(a) of title 18, United States Code,
is amended by adding at the end the following:
`(iii) A certification under subparagraph (ii)(B) for assistance to
obtain foreign intelligence information shall identify the specific
provision of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1801 et seq.) that provides an exception from providing a court order,
and shall certify that the statutory requirements of such provision
have been met.'.
(2) TABLE OF CONTENTS- The table of contents in the first section
of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801
et seq.) is amended by adding after the item relating to section 111,
the following:
`Sec. 112. Statement of exclusive means by which electronic surveillance
and interception of certain communications may be conducted.'.
(c) Offense- Section 109(a) of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1809(a)) is amended by striking `authorized by
statute' each place it appears in such section and inserting `authorized
by this title or chapter 119, 121, or 206 of title 18, United States
Code'.
SEC. 103. SUBMITTAL TO CONGRESS OF CERTAIN COURT ORDERS UNDER THE
FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.
(a) Inclusion of Certain Orders in Semi-Annual Reports of Attorney General-
Subsection (a)(5) of section 601 of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1871) is amended by striking `(not including
orders)' and inserting `, orders,'.
(b) Reports by Attorney General on Certain Other Orders- Such section
601 is further amended by adding at the end the following new subsection:
`(c) Submissions to Congress- The Attorney General shall submit to the
committees of Congress referred to in subsection (a)--
`(1) a copy of any decision, order, or opinion issued by the Foreign
Intelligence Surveillance Court or the Foreign Intelligence Surveillance
Court of Review that includes significant construction or interpretation
of any provision of this Act, and any pleadings associated with such
decision, order, or opinion, not later than 45 days after such decision,
order, or opinion is issued; and
`(2) a copy of any such decision, order, or opinion, and the pleadings
associated with such decision, order, or opinion, that was issued
during the 5-year period ending on the date of the enactment of the
FISA Amendments Act of 2007 and not previously submitted in a report
under subsection (a).'.
SEC. 104. APPLICATIONS FOR COURT ORDERS.
Section 104 of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1804) is amended--
(A) by striking paragraphs (2) and (11);
(B) by redesignating paragraphs (3) through (10) as paragraphs (2)
through (9), respectively;
(C) in paragraph (5), as redesignated by subparagraph (B) of this
paragraph, by striking `detailed';
(D) in paragraph (6), as redesignated by subparagraph (B) of this
paragraph, in the matter preceding subparagraph (A)--
(i) by striking `Affairs or' and inserting `Affairs,'; and
(ii) by striking `Senate--' and inserting `Senate, or the Deputy
Director of the Federal Bureau of Investigation, if the Director
of the Federal Bureau of Investigation is unavailable--';
(E) in paragraph (7), as redesignated by subparagraph (B) of this
paragraph, by striking `statement of' and inserting `summary statement
of';
(F) in paragraph (8), as redesignated by subparagraph (B) of this
paragraph, by adding `and' at the end; and
(G) in paragraph (9), as redesignated by subparagraph (B) of this
paragraph, by striking `; and' and inserting a period;
(2) by striking subsection (b);
(3) by redesignating subsections (c) through (e) as subsections (b)
through (d), respectively; and
(4) in paragraph (1)(A) of subsection (d), as redesignated by paragraph
(3) of this subsection, by striking `or the Director of National Intelligence'
and inserting `the Director of National Intelligence, or the Director
of the Central Intelligence Agency'.
SEC. 105. ISSUANCE OF AN ORDER.
Section 105 of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1805) is amended--
(A) by striking paragraph (1); and
(B) by redesignating paragraphs (2) through (5) as paragraphs (1)
through (4), respectively;
(2) in subsection (b), by striking `(a)(3)' and inserting `(a)(2)';
(3) in subsection (c)(1)--
(A) in subparagraph (D), by adding `and' at the end;
(B) in subparagraph (E), by striking `; and' and inserting a period;
and
(C) by striking subparagraph (F);
(4) by striking subsection (d);
(5) by redesignating subsections (e) through (i) as subsections (d)
through (h), respectively;
(6) by amending subsection (e), as redesignated by paragraph (5) of
this section, to read as follows:
`(e)(1) Notwithstanding any other provision of this title, the Attorney
General may authorize the emergency employment of electronic surveillance
if the Attorney General--
`(A) determines that an emergency situation exists with respect to
the employment of electronic surveillance to obtain foreign intelligence
information before an order authorizing such surveillance can with
due diligence be obtained;
`(B) determines that the factual basis for issuance of an order under
this title to approve such electronic surveillance exists;
`(C) informs, either personally or through a designee, a judge having
jurisdiction under section 103 at the time of such authorization that
the decision has been made to employ emergency electronic surveillance;
and
`(D) makes an application in accordance with this title to a judge
having jurisdiction under section 103 as soon as practicable, but
not later than 168 hours after the Attorney General authorizes such
surveillance.
`(2) If the Attorney General authorizes the emergency employment of
electronic surveillance under paragraph (1), the Attorney General shall
require that the minimization procedures required by this title for
the issuance of a judicial order be followed.
`(3) In the absence of a judicial order approving such electronic surveillance,
the surveillance shall terminate when the information sought is obtained,
when the application for the order is denied, or after the expiration
of 168 hours from the time of authorization by the Attorney General,
whichever is earliest.
`(4) A denial of the application made under this subsection may be reviewed
as provided in section 103.
`(5) In the event that such application for approval is denied, or in
any other case where the electronic surveillance 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, hearing, or other proceeding in
or before any court, grand jury, department, 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 the approval of the
Attorney General if the information indicates a threat of death or serious
bodily harm to any person.
`(6) The Attorney General shall assess compliance with the requirements
of paragraph (5).'; and
(7) by adding at the end the following:
`(i) In any case in which the Government makes an application to a judge
under this title to conduct electronic surveillance involving communications
and the judge grants such application, upon the request of the applicant,
the judge shall also authorize the installation and use of pen registers
and trap and trace devices, and direct the disclosure of the information
set forth in section 402(d)(2).'.
SEC. 106. USE OF INFORMATION.
Subsection (i) of section 106 of the Foreign Intelligence Surveillance
Act of 1978 (8 U.S.C. 1806) is amended by striking `radio communication'
and inserting `communication'.
SEC. 107. AMENDMENTS FOR PHYSICAL SEARCHES.
(a) Applications- Section 303 of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1823) is amended--
(A) by striking paragraph (2);
(B) by redesignating paragraphs (3) through (9) as paragraphs (2)
through (8), respectively;
(C) in paragraph (2), as redesignated by subparagraph (B) of this
paragraph, by striking `detailed';
(D) in paragraph (3)(C), as redesignated by subparagraph (B) of
this paragraph, by inserting `or is about to be' before `owned';
and
(E) in paragraph (6), as redesignated by subparagraph (B) of this
paragraph, in the matter preceding subparagraph (A)--
(i) by striking `Affairs or' and inserting `Affairs,'; and
(ii) by striking `Senate--' and inserting `Senate, or the Deputy
Director of the Federal Bureau of Investigation, if the Director
of the Federal Bureau of Investigation is unavailable--'; and
(2) in subsection (d)(1)(A), by striking `or the Director of National
Intelligence' and inserting `the Director of National Intelligence,
or the Director of the Central Intelligence Agency'.
(b) Orders- Section 304 of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1824) is amended--
(A) by striking paragraph (1); and
(B) by redesignating paragraphs (2) through (5) as paragraphs (1)
through (4), respectively; and
(2) by amending subsection (e) to read as follows:
`(e)(1) Notwithstanding any other provision of this title, the Attorney
General may authorize the emergency employment of a physical search
if the Attorney General--
`(A) determines that an emergency situation exists with respect to
the employment of a physical search to obtain foreign intelligence
information before an order authorizing such physical search can with
due diligence be obtained;
`(B) determines that the factual basis for issuance of an order under
this title to approve such physical search exists;
`(C) informs, either personally or through a designee, a judge of
the Foreign Intelligence Surveillance Court at the time of such authorization
that the decision has been made to employ an emergency physical search;
and
`(D) makes an application in accordance with this title to a judge
of the Foreign Intelligence Surveillance Court as soon as practicable,
but not more than 168 hours after the Attorney General authorizes
such physical search.
`(2) If the Attorney General authorizes the emergency employment of
a physical search under paragraph (1), the Attorney General shall require
that the minimization procedures required by this title for the issuance
of a judicial order be followed.
`(3) In the absence of a judicial order approving such physical search,
the physical search shall terminate when the information sought is obtained,
when the application for the order is denied, or after the expiration
of 168 hours from the time of authorization by the Attorney General,
whichever is earliest.
`(4) A denial of the application made under this subsection may be reviewed
as provided in section 103.
`(5)(A) In the event that such application for approval is denied, or
in any other case where the physical search is terminated and no order
is issued approving the physical search, no information obtained or
evidence derived from such physical search shall be received in evidence
or otherwise disclosed in any trial, hearing, or other proceeding in
or before any court, grand jury, department, 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 physical search shall subsequently
be used or disclosed in any other manner by Federal officers or employees
without the consent of such person, except with the approval of the
Attorney General if the information indicates a threat of death or serious
bodily harm to any person.
`(B) The Attorney General shall assess compliance with the requirements
of subparagraph (A).'.
(c) Conforming Amendments- The Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1801 et seq.) is amended--
(1) in section 304(a)(4), as redesignated by subsection (b) of this
section, by striking `303(a)(7)(E)' and inserting `303(a)(6)(E)';
and
(2) in section 305(k)(2), by striking `303(a)(7)' and inserting `303(a)(6)'.
SEC. 108. AMENDMENTS FOR EMERGENCY PEN REGISTERS AND TRAP AND TRACE
DEVICES.
Section 403 of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1843) is amended--
(1) in subsection (a)(2), by striking `48 hours' and inserting `168
hours'; and
(2) in subsection (c)(1)(C), by striking `48 hours' and inserting
`168 hours'.
SEC. 109. FOREIGN INTELLIGENCE SURVEILLANCE COURT.
(a) Designation of Judges- Subsection (a) of section 103 of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1803) is amended by
inserting `at least' before `seven of the United States judicial circuits'.
(1) IN GENERAL- Subsection (a) of section 103 of the Foreign Intelligence
Surveillance Act of 1978, as amended by subsection (a) of this section,
is further amended--
(A) by inserting `(1)' after `(a)'; and
(B) by adding at the end the following new paragraph:
`(2)(A) The court established under this subsection may, on its own
initiative, or upon the request of the Government in any proceeding
or a party under section 501(f) or paragraph (4) or (5) of section 702(h),
hold a hearing or rehearing, en banc, when ordered by a majority of
the judges that constitute such court upon a determination that--
`(i) en banc consideration is necessary to secure or maintain uniformity
of the court's decisions; or
`(ii) the proceeding involves a question of exceptional importance.
`(B) Any authority granted by this Act to a judge of the court established
under this subsection may be exercised by the court en banc. When exercising
such authority, the court en banc shall comply with any requirements
of this Act on the exercise of such authority.
`(C) For purposes of this paragraph, the court en banc shall consist
of all judges who constitute the court established under this subsection.'.
(2) CONFORMING AMENDMENTS- The Foreign Intelligence Surveillance Act
of 1978 is further amended--
(A) in subsection (a) of section 103, as amended by this subsection,
by inserting `(except when sitting en banc under paragraph (2))'
after `no judge designated under this subsection'; and
(B) in section 302(c) (50 U.S.C. 1822(c)), by inserting `(except
when sitting en banc)' after `except that no judge'.
(c) Stay or Modification During an Appeal- Section 103 of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1803) is amended--
(1) by redesignating subsection (f) as subsection (g); and
(2) by inserting after subsection (e) the following new subsection:
`(f)(1) A judge of the court established under subsection (a), the court
established under subsection (b) or a judge of that court, or the Supreme
Court of the United States or a justice of that court, may, in accordance
with the rules of their respective courts, enter a stay of an order
or an order modifying an order of the court established under subsection
(a) or the court established under subsection (b) entered under any
title of this Act, while the court established under subsection (a)
conducts a rehearing, while an appeal is pending to the court established
under subsection (b), or while a petition of certiorari is pending in
the Supreme Court of the United States, or during the pendency of any
review by that court.
`(2) The authority described in paragraph (1) shall apply to an order
entered under any provision of this Act.'.
SEC. 110. REVIEW OF PREVIOUS ACTIONS.
(a) Definitions- In this section--
(1) 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)); and
(2) the term `Terrorist Surveillance Program' means the intelligence
program publicly confirmed by the President in a radio address on
December 17, 2005, and any previous, subsequent or related, versions
or elements of that program.
(b) Audit- Not later than 180 days after the date of the enactment of
this Act, the Inspectors General of the Department of Justice and relevant
elements of the intelligence community shall work in conjunction to
complete a comprehensive audit of the Terrorist Surveillance Program
and any closely related intelligence activities, which shall include
acquiring all documents relevant to such programs, including memoranda
concerning the legal authority of a program, authorizations of a program,
certifications to telecommunications carriers, and court orders.
(1) IN GENERAL- Not later than 30 days after the completion of the
audit under subsection (b), the Inspectors General shall submit to
the Permanent Select Committee on Intelligence and the Committee on
the Judiciary of the House of Representatives and the Select Committee
on Intelligence and the Committee on the Judiciary of the Senate a
joint report containing the results of that audit, including all documents
acquired pursuant to the conduct of that audit.
(2) FORM- The report under paragraph (1) shall be submitted in unclassified
form, but may include a classified annex.
(d) Expedited Security Clearance- The Director of National Intelligence
shall ensure that the process for the investigation and adjudication
of an application by an Inspector General or any appropriate staff of
an Inspector General for a security clearance necessary for the conduct
of the audit under subsection (b) is conducted as expeditiously as possible.
(e) Additional Legal and Other Personnel for the Inspectors General-
The Inspectors General of the Department of Justice and of the relevant
elements of the intelligence community are authorized such additional
legal and other personnel as may be necessary to carry out the prompt
and timely preparation of the audit and report required under this section.
Personnel authorized by this subsection shall perform such duties relating
to the audit as the relevant Inspector General shall direct. The personnel
authorized by this subsection are in addition to any other personnel
authorized by law.
SEC. 111. TECHNICAL AND CONFORMING AMENDMENTS.
Section 103(e) of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1803(e)) is amended--
(1) in paragraph (1), by striking `105B(h) or 501(f)(1)' and inserting
`501(f)(1) or 702'; and
(2) in paragraph (2), by striking `105B(h) or 501(f)(1)' and inserting
`501(f)(1) or 702'.
TITLE II--PROTECTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS
SEC. 201. 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. 202. LIMITATIONS ON CIVIL ACTIONS FOR ELECTRONIC COMMUNICATION
SERVICE PROVIDERS.
(1) IN GENERAL- Notwithstanding any other provision of law, a covered
civil action shall not lie or be maintained in a Federal or State
court, and shall be promptly dismissed, if the Attorney General certifies
to the court that--
(A) the assistance alleged to have been provided by the electronic
communication service provider was--
(i) 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.
(2) REVIEW- A certification made pursuant to paragraph (1) shall be
subject to review by a court for abuse of discretion.
(b) Review of Certifications- If the Attorney General files a declaration
under section 1746 of title 28, United States Code, that disclosure
of a certification made pursuant to subsection (a) would harm the national
security of the United States, the court shall--
(1) review such certification in camera and ex parte; and
(2) limit any public disclosure concerning such certification, including
any public order following such an ex parte review, to a statement
that the conditions of subsection (a) have been met, without disclosing
the subparagraph of subsection (a)(1) that is the basis for the certification.
(c) Nondelegation- The authority and duties of the Attorney General
under this section shall be performed by the Attorney General (or Acting
Attorney General) or a designee in a position not lower than the Deputy
Attorney General.
(d) Civil Actions in State Court- A covered civil action that is brought
in a State court shall be deemed to arise under the Constitution and
laws of the United States and shall be removable under section 1441
of title 28, United States Code.
(e) Rule of Construction- Nothing in this section may be construed to
limit any otherwise available immunity, privilege, or defense under
any other provision of law.
(f) Effective Date and Application- This section shall apply to any
covered civil action that is pending on or filed after the date of enactment
of this Act.
SEC. 203. PROCEDURES FOR IMPLEMENTING STATUTORY DEFENSES UNDER THE
FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.
The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.), as amended by section 101, is further amended by adding after
title VII the following new title:
`TITLE VIII--PROTECTION OF PERSONS ASSISTING THE GOVERNMENT
`SEC. 801. 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) ATTORNEY GENERAL- The term `Attorney General' has the meaning
give that term in section 101(g).
`(3) CONTENTS- The term `contents' has the meaning given that term
in section 101(n).
`(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 electronic communications 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
as specified or designated under section 3(4) of the National Security
Act of 1947 (50 U.S.C. 401a(4)).
`(6) PERSON- The term `person' means--
`(A) an electronic communication service provider; or
`(B) a landlord, custodian, or other person who may be authorized
or required to furnish assistance pursuant to--
`(i) an order of the court established under section 103(a) directing
such assistance;
`(ii) a certification in writing under section 2511(2)(a)(ii)(B)
or 2709(b) of title 18, United States Code; or
`(iii) a directive under section 102(a)(4), 105B(e), as in effect
on the day before the date of the enactment of the FISA Amendments
Act of 2007 or 703(h).
`(7) STATE- The term `State' means any State, political subdivision
of a State, the Commonwealth of Puerto Rico, the District of Columbia,
and any territory or possession of the United States, and includes
any officer, public utility commission, or other body authorized to
regulate an electronic communication service provider.
`SEC. 802. PROCEDURES FOR IMPLEMENTING STATUTORY DEFENSES.
`(a) Requirement for Certification-
`(1) IN GENERAL- Notwithstanding any other provision of law, no civil
action may lie or be maintained in a Federal or State court against
any person for providing assistance to an element of the intelligence
community, and shall be promptly dismissed, if the Attorney General
certifies to the court that--
`(A) any assistance by that person was provided pursuant to an order
of the court established under section 103(a) directing such assistance;
`(B) any assistance by that person was provided pursuant to a certification
in writing under section 2511(2)(a)(ii)(B) or 2709(b) of title 18,
United States Code;
`(C) any assistance by that person was provided pursuant to a directive
under sections 102(a)(4), 105B(e), as in effect on the day before
the date of the enactment of the FISA Amendments Act of 2007, or
703(h) directing such assistance; or
`(D) the person did not provide the alleged assistance.
`(2) REVIEW- A certification made pursuant to paragraph (1) shall
be subject to review by a court for abuse of discretion.
`(b) Limitations on Disclosure- If the Attorney General files a declaration
under section 1746 of title 28, United States Code, that disclosure
of a certification made pursuant to subsection (a) would harm the national
security of the United States, the court shall--
