Amends the Foreign Intelligence Surveillance Act of 1978 (FISA) to state that nothing in the FISA definition of "electronic surveillance" shall be construed to encompass surveillance directed at a person located outside the United States.
Authorizes the Director of National Intelligence (DNI) and the Attorney General (AG), for periods up to one year, to acquire foreign intelligence information concerning persons outside the United States under specified procedures subject to review by the Foreign Intelligence Surveillance Court (Court). Allows the DNI and AG to issue a directive to require a person to: (1) provide appropriate information to accomplish an acquisition while protecting the secrecy of the information acquired and producing a minimum of interference with services provided to the acquisition target; and (2) maintain appropriate records concerning the acquisition. Outlines procedures to be followed in the case of a failure to comply with a directive.
Directs the: (1) AG to submit to the Court the procedures by which the government determines that acquisitions conducted pursuant to the above authority do not constitute electronic surveillance; and (2) Court to assess such procedures.
Requires the AG to report semiannually to the congressional intelligence and judiciary committees on incidents of noncompliance with directives issues by the DNI and AG.
[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3321 Introduced in House (IH)]
110th CONGRESS
1st Session
H. R. 3321
To update the Foreign Intelligence Surveillance Act of 1978, and for
other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
August 2, 2007
Mr. Hoekstra (for himself, Mr. Boehner, Mr. Blunt, and Mr. Putnam)
introduced the following bill; which was referred to the Committee on
the Judiciary, and in addition to the Select Committee on Intelligence
(Permanent Select), for a period to be subsequently determined by the
Speaker, in each case for consideration of such provisions as fall
within the jurisdiction of the committee concerned
_______________________________________________________________________
A BILL
To update the Foreign Intelligence Surveillance Act of 1978, 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. ADDITIONAL PROCEDURE FOR AUTHORIZING CERTAIN ACQUISITIONS OF
FOREIGN INTELLIGENCE INFORMATION.
The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801
et seq.) is amended by inserting after section 105 the following:
``clarification of electronic surveillance of persons outside the
united states
``Sec. 105A. Nothing in the definition of electronic surveillance
under section 101(f) shall be construed to encompass surveillance
directed at a person reasonably believed to be located outside of the
United States.
``additional procedure for authorizing certain acquisitions concerning
persons located outside the united states
``Sec. 105B. (a) In General.--Notwithstanding any other law, the
Director of National Intelligence and the Attorney General, may for
periods of up to one year authorize the acquisition of foreign
intelligence information concerning persons reasonably believed to be
outside the United States if the Director of National Intelligence and
the Attorney General determine, based on the information provided to
them, that--
``(1) there are reasonable procedures in place for
determining that the acquisition of foreign intelligence
information under this section concerns persons reasonably
believed to be located outside the United States, and such
procedures will be subject to review of the Court pursuant to
section 105C of this act;
``(2) the acquisition does not constitute electronic
surveillance;
``(3) the acquisition involves obtaining the foreign
intelligence information from or with the assistance of a
communications service provider, custodian, or other person
(including any officer, employee, agent, or other specified
person of such service provider, custodian, or other person)
who has access to communications, either as they are
transmitted or while they are stored, or equipment that is
being or may be used to transmit or store such communications;
``(4) a significant purpose of the acquisition is to obtain
foreign intelligence information; and
``(5) the minimization procedures to be used with respect
to such acquisition activity meet the definition of
minimization procedures under section 101(h).
This determination shall be in the form of a written certification,
under oath, supported as appropriate by affidavit of appropriate
officials in the national security field occupying positions appointed
by the President, by and with the consent of the Senate, or the Head of
any Agency of the Intelligence Community, unless immediate action by
the Government is required and time does not permit the preparation of
a certification. In such a case, the determination of the Director of
National Intelligence and the Attorney General shall be reduced to a
certification as soon as possible but in no event more than 72 hours
after the determination is made.
``(b) Specific Place Not Required.--A certification under
subsection (a) is not required to identify the specific facilities,
places, premises, or property at which the acquisition of foreign
intelligence information will be directed.
``(c) Submission of Certification.--The Attorney General shall
transmit as soon as practicable under seal to the court established
under section 103(a) a copy of a certification made under subsection
(a). Such certification shall be maintained under security measures
established by the Chief Justice of the United States and the Attorney
General, in consultation with the Director of National Intelligence,
and shall remain sealed unless the certification is necessary to
determine the legality of the acquisition under section 105B.
``(d) Minimization Procedures.--An acquisition under this section
may be conducted only in accordance with the certification of the
Director of National Intelligence and the Attorney General, or their
oral instructions if time does not permit the preparation of a
certification, and the minimization procedures adopted by the Attorney
General. The Director of National Intelligence and the Attorney General
shall assess compliance with such procedures and shall report such
assessments to the Permanent Select Committee on Intelligence of the
House of Representatives and the Select Committee on Intelligence of
the Senate under section 108(a).
``(e) Directive.--With respect to an authorization of an
acquisition under section 105B, the Director of National Intelligence
and Attorney General may direct a person to--
``(1) immediately provide the Government with all
information, facilities, and assistance necessary to accomplish
the acquisition in such a manner as will protect the secrecy of
the acquisition and produce a minimum of interference with the
services that such person is providing to the target; and
``(2) 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 person wishes to maintain.
``(f) Compensation.--The Government shall compensate, at the
prevailing rate, a person for providing information, facilities, or
assistance pursuant to subsection (e).
``(g) Failure To Comply.--In the case of a failure to comply with a
directive issued pursuant to subsection (e), the Attorney General may
invoke the aid of the court established under section 103(a) to compel
compliance with the directive. The court shall issue an order requiring
the person to comply with the directive if it finds that the directive
was issued in accordance with subsection (e) and is otherwise lawful.
Failure to obey an order of the court may be punished by the court as
contempt of court. Any process under this section may be served in any
judicial district in which the person may be found.
``(h) Review of Petitions.--(1)(A) A person receiving a directive
issued pursuant to subsection (e) may challenge the legality of that
directive by filing a petition with the pool established under section
103(e)(1).
``(B) The presiding judge designated pursuant to section 103(b)
shall assign a petition filed under subparagraph (A) to one of the
judges serving in the pool established by section 103(e)(1). Not later
than 48 hours after the assignment of such petition, the assigned judge
shall conduct an initial review of the directive. If the assigned judge
determines that the petition is frivolous, the assigned judge shall
immediately deny the petition and affirm the directive or any part of
the directive that is the subject of the petition. If the assigned
judge determines the petition is not frivolous, the assigned judge
shall, within 72 hours, consider the petition in accordance with the
procedures established under section 103(e)(2) and provide a written
statement for the record of the reasons for any determination under
this subsection.
``(2) A judge considering a petition to modify or set aside a
directive may grant such petition only if the judge finds that such
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 such directive.
``(3) Any directive not explicitly modified or set aside under this
subsection shall remain in full effect.
``(i) Appeals.--The Government or a person receiving a directive
reviewed pursuant to subsection (h) may file a petition with the Court
of Review established under section 103(b) for review of the decision
issued pursuant to subsection (h) not later than 7 days after the
issuance of such decision. Such court of review shall have jurisdiction
to consider such petitions and shall provide for the record a written
statement of the reasons for its decision. On petition for a writ of
certiorari by the Government or any person receiving such directive,
the record shall be transmitted under seal to the Supreme Court, which
shall have jurisdiction to review such decision.
``(j) Proceedings.--Judicial proceedings under this section shall
be concluded as expeditiously as possible. The record of proceedings,
including petitions filed, orders granted, and statements of reasons
for decision, shall be maintained under security measures established
by the Chief Justice of the United States, in consultation with the
Attorney General and the Director of National Intelligence.
``(k) Sealed Petitions.--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.
``(l) Liability.--Notwithstanding any other law, no cause of action
shall lie in any court against any person for providing any
information, facilities, or assistance in accordance with a directive
under this section.
``(m) Retention of Directives and Orders.--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.''.
SEC. 2. SUBMISSION TO COURT REVIEW AND ASSESSMENT OF PROCEDURES.
The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801
et seq.) is further amended by inserting after section 105B the
following:
``submission to court review of procedures
``Sec. 105C. (a) No later than 120 days after the date of the
enactment of this section, the Attorney General shall submit to the
Court established under section 103(a), the procedures by which the
Government determines that acquisitions conducted pursuant to section
105B do not constitute electronic surveillance. The procedures
submitted pursuant to this section shall be updated and submitted to
the Court on an annual basis.
``(b) No later than 180 days after the date of the enactment of
this section, the court established under section 103(a) shall assess
the Government's determination under section 105B(a)(1) that those
procedures are reasonably designed to ensure that acquisitions
conducted pursuant to section 105B do not constitute electronic
surveillance. The courts review shall be limited to whether the
Government's determination is clearly erroneous.
``(c) If the court concludes that the determination is not clearly
erroneous, it shall enter an order approving the continued use of such
procedures. If the court concludes that the determination is clearly
erroneous, it shall issue an order directing the Government to submit
new procedures within 30 days or cease any acquisitions under section
105B that are implicated by the court's order.
``(d) The Government may appeal any order issued under subsection
(c) to the court established under section 103(b). If such court
determines that the order was properly entered, the court shall
immediately provide for the record a written statement of each reason
for its decision, and, on petition of the United States for a writ of
certiorari, the record shall be transmitted under seal to the Supreme
Court of the United States, which shall have jurisdiction to review
such decision. Any acquisitions affected by the order issued under
subsection (c) of this section may continue during the pendency of any
appeal, the period during which a petition for writ of certiorari may
be pending, and any review by the Supreme Court of the United
States.''.
SEC. 3. REPORTING TO CONGRESS.
The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801
et seq.) is further amended by inserting after section 105C the
following:
``reporting to congress
``Sec. 105D. On a semi-annual basis the Attorney General shall
inform the Select Committee on Intelligence of the Senate, the
Permanent Select Committee on Intelligence of the House of
Representatives, the Committee on the Judiciary of the Senate, and the
Committee on the Judiciary of the House of Representatives, concerning
acquisitions under this section during the previous six-month period.
Each report made under this section shall include--
``(1) a description of the incidents of noncompliance with
a directive issued by the Attorney General and the director of
national intelligence under section 105B to include--
``(A) incidents of noncompliance by an element of
the Intelligence Community with guidelines or
procedures established for determining that the
acquisition of foreign intelligence authorized by the
Attorney General and Director of National Intelligence
concerns persons reasonably to be outside the United
States; and
``(B) incidents of noncompliance by a specified
person to whom the Attorney General and Director of
National Intelligence issue a directive under this
section; and
``(2) the number of certifications and directives issued
during the reporting period.''.
SEC. 4. TECHNICAL AMENDMENT AND CONFORMING AMENDMENTS.
(a) Section 103(e) of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1801 et seq.) is amended--
(1) in paragraph (1), by striking ``501(f)(1)'' and
inserting ``105B(h) or 501(f)(1)''; and
(2) in paragraph (2), by striking ``501(f)(1)'' and
inserting ``105B(h) or 501(f)(1)''.
(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 by inserting after the item relating to section 105
the following:
``105A. Clarification of electronic surveillance of persons outside the
United States.
``105B. Additional procedure for authorizing certain acquisitions
concerning persons located outside the
United States.
``105C. Submission to court review of procedures.
``105D. Reporting to Congress.''.
SEC. 5. LIABILITY DEFENSE.
(a) In General.--Notwithstanding any other law, and in addition to
the immunities, privileges, and defenses provided by any other source
of law, no action shall lie or be maintained in any court, and no
penalty, sanction, or other form of remedy or relief shall be imposed
by any court or any other body, against any person for the alleged
provision to an element of the intelligence community of any
information (including records or other information pertaining to a
customer), facilities, or any other form of assistance, during the
period of time beginning on September 11, 2001, and ending on the date
that is the effective date of this Act, in connection with any alleged
classified communications intelligence activity that the Attorney
General or a designee of the Attorney General certifies, in a manner
consistent with the protection of State secrets, is, was, would be, or
would have been intended to protect the United States from a terrorist
attack. This section shall apply to all actions, claims, or proceedings
pending on or after the effective date of this Act.
(b) Jurisdiction.--Any action or claim described in subsection (a)
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
pursuant to section 1441 of title 28, United States Code.
(c) Definitions.--In this section:
(1) Intelligence community.--The term ``intelligence
community'' has the meaning given the term in section 3(4) of
the National Security Act of 1947 (50 U.S.C. 401a(4)).
(2) Person.--The term ``person'' has the meaning given the
term in section 2510(6) of title 18, United States Code.
SEC. 6. EFFECTIVE DATE; TRANSITION PROCEDURES.
(a) Except as otherwise provided, the amendments made by this Act
shall take effect immediately after the date of the enactment of this
Act.
(b) Notwithstanding any other provision of this Act, any order in
effect on the date of enactment of this Act issued pursuant to the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.)
shall remain in effect until the date of expiration of such order, and,
at the request of the applicant, the court established under section
103 (a) of such Act (50 U.S.C. 1803(a)) shall reauthorize such order as
long as the facts and circumstances continue to justify issuance of
such order under the provisions of the Foreign Intelligence
Surveillance Act of 1978, as in effect on the day before the applicable
effective date of this Act. The Government also may file new
applications, and the court established under section 103(a) of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a)) shall
enter orders granting such applications pursuant to such Act, as long
as the application meets the requirements set forth under the
provisions of such Act as in effect on the day before the effective
date of this Act. At the request of the applicant, the court
established under section 103(a) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1803(a)), shall extinguish any
extant authorization to conduct electronic surveillance or physical
search entered pursuant to such Act. Any surveillance conducted
pursuant to an order entered under this subsection shall be subject to
the provisions of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.), as in effect on the day before the effective date
of this Act.
<all>
Introduced in House
Introduced in House
Referred to the Committee on the Judiciary, and in addition to the Committee on Intelligence (Permanent Select), for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on the Judiciary, and in addition to the Committee on Intelligence (Permanent Select), for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on the Judiciary, and in addition to the Committee on Intelligence (Permanent Select), for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Subcommittee on Crime, Terrorism, and Homeland Security.
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