Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 or FISA Amendments Act of 2008 - Amends the Foreign Intelligence Surveillance Act of 1978 (FISA) to authorize the Attorney General (AG) and Director of National Intelligence (DNI) to jointly authorize, for periods up to one year, the targeting (electronic surveillance) of persons located outside the United States in order to acquire foreign intelligence information, under specified limitations and requirements.
Authorizes the AG and DNI to direct an electronic communication service provider to: (1) immediately provide the government with all information, facilities, and assistance necessary to accomplish an acquisition of communications; and (2) maintain under security procedures any records concerning such acquisition.
Requires the AG and DNI, at least every six months, to: (1) assess compliance with required targeting and minimization procedures; and (2) submit assessment results to the Foreign Intelligence Surveillance Court (Court) and the congressional intelligence committees.
States that FISA and the procedures of chapters 119 (Wire and Electronic Communications Interception and Interception of Oral Communications), 121 (Stored Wire and Electronic Communications and Transactional Records Access), and 206 (Pen Registers and Trap and Trace Devices) of the federal criminal code shall be the exclusive means by which electronic surveillance and the interception of domestic wire, oral, or electronic communications may be conducted.
Allows the AG to authorize the emergency employment of electronic surveillance if the AG, among other things: (1) determines that an emergency exists; (2) informs a Court judge of such determination; and (3) applies for a Court order authorizing such surveillance.
Requires the AG, after authorizing the installation and use of a pen register or trap and trace device on an emergency basis, to apply to the Court for an authorization order within seven days (current law requires 48 hours) after the emergency installation and use.
Authorizes the Court to sit en banc when: (1) necessary to secure or maintain uniformity of Court decisions; or (2) the proceeding involves a question of exceptional importance.
Authorizes the acquisition of foreign intelligence information in order to prevent the international proliferation of weapons of mass destruction.
Prohibits: (1) civil actions against a communication service provider, or individual other than such a provider, furnishing surveillance assistance requested from an element of the intelligence community; and (2) a state from conducting investigations, imposing sanctions, or commencing or maintaining a civil action or other proceeding against a provider furnishing requested assistance.
[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5440 Introduced in House (IH)]
110th CONGRESS
2d Session
H. R. 5440
To amend the Foreign Intelligence Surveillance Act of 1978 to establish
a procedure for authorizing certain acquisitions of foreign
intelligence, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
February 14, 2008
Mr. Fossella (for himself, Mr. King of New York, Mr. Hoekstra, and Mr.
Smith of Texas) 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 amend the Foreign Intelligence Surveillance Act of 1978 to establish
a procedure for authorizing certain acquisitions of foreign
intelligence, 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 2008'' or the
``FISA Amendments Act of 2008''.
(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. Additional procedures regarding certain persons outside the
United States.
Sec. 102. Statement of exclusive means by which electronic surveillance
and interception of domestic 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. Weapons of mass destruction.
Sec. 111. Technical and conforming amendments.
TITLE II--PROTECTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS
Sec. 201. Definitions.
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. 301. Severability.
Sec. 302. Effective date; repeal; transition procedures.
TITLE I--FOREIGN INTELLIGENCE SURVEILLANCE
SEC. 101. ADDITIONAL PROCEDURES REGARDING 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 REGARDING CERTAIN PERSONS OUTSIDE
THE UNITED STATES
``SEC. 701. LIMITATION ON DEFINITION OF ELECTRONIC SURVEILLANCE.
``Nothing in the definition of electronic surveillance under
section 101(f) shall be construed to encompass surveillance that is
targeted in accordance with this title at a person reasonably believed
to be located outside the United States.
``SEC. 702. DEFINITIONS.
``(a) 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, except as specifically provided in
this title.
``(b) Additional Definitions.--
``(1) Congressional intelligence committees.--The term
`congressional intelligence committees' means--
``(A) the Select Committee on Intelligence of the
Senate; and
``(B) the Permanent Select Committee on
Intelligence of the House of Representatives.
``(2) Foreign intelligence surveillance court; court.--The
terms `Foreign Intelligence Surveillance Court' and `Court'
mean the court established by section 103(a).
``(3) 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).
``(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 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; or
``(E) an officer, employee, or agent of an entity
described in subparagraph (A), (B), (C), or (D).
``(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. 703. PROCEDURES FOR TARGETING CERTAIN PERSONS OUTSIDE THE UNITED
STATES OTHER THAN UNITED STATES PERSONS.
``(a) Authorization.--Notwithstanding any other law, the Attorney
General and the Director of National Intelligence may authorize
jointly, for periods of up to 1 year, the targeting of persons
reasonably believed to be located outside the United States to acquire
foreign intelligence information.
``(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 located outside the United States if the purpose
of such acquisition is to target a particular, known person
reasonably believed to be in the United States, except in
accordance with title I or title III;
``(3) may not intentionally target a United States person
reasonably believed to be located outside the United States,
except in accordance with sections 704, 705, or 706;
``(4) shall not intentionally acquire any communication as
to which the sender and all intended recipients are known at
the time of the acquisition to be located in the United States;
and
``(5) shall be conducted in a manner consistent with the
fourth amendment to the Constitution of the United States.
``(c) 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 (f);
and
``(2) the targeting and minimization procedures required
pursuant to subsections (d) and (e).
``(d) 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 does not result in the
intentional acquisition of any communication as to which the
sender and all intended recipients are known at the time of the
acquisition 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 (h).
``(e) Minimization Procedures.--
``(1) Requirement to adopt.--The Attorney General, in
consultation with the Director of National Intelligence, shall
adopt minimization procedures that meet the definition of
minimization procedures under section 101(h) or section 301(4)
for acquisitions authorized under subsection (a).
``(2) Judicial review.--The minimization procedures
required by this subsection shall be subject to judicial review
pursuant to subsection (h).
``(f) Certification.--
``(1) In general.--
``(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 7 days after such determination
is made.
``(2) Requirements.--A certification made under this
subsection shall--
``(A) attest that--
``(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 be
submitted in not more than 5 days for approval
by, the Foreign Intelligence Surveillance Court
pursuant to subsection (h);
``(ii) there are reasonable procedures in
place for determining that the acquisition
authorized under subsection (a) does not result
in the intentional acquisition of any
communication as to which the sender and all
intended recipients are known at the time of
the acquisition to be located in the United
States, and that such procedures have been
approved by, or will be submitted in not more
than 5 days for approval by, the Foreign
Intelligence Surveillance Court pursuant to
subsection (h);
``(iii) the procedures referred to in
clauses (i) and (ii) 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 or the intentional
acquisition of any communication as to which
the sender and all intended recipients are
known at the time of acquisition 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) or section 301(4); and
``(II) have been approved by, or
will be submitted in not more than 5
days for approval by, the Foreign
Intelligence Surveillance Court
pursuant to subsection (h);
``(vi) the acquisition involves obtaining
the foreign intelligence information from or
with the assistance of an electronic
communication service provider; and
``(vii) the acquisition does not constitute
electronic surveillance, as limited by section
701; 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 (h).
``(g) Directives and Judicial Review of Directives.--
``(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, which shall have
jurisdiction to review such a petition.
``(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.
``(D) Procedures for initial review.--A judge shall
conduct an initial review not later than 5 days after
being assigned a petition described in subparagraph
(C). If the judge determines that the petition consists
of claims, defenses, or other legal contentions that
are not warranted by existing law or by a nonfrivolous
argument for extending, modifying, or reversing
existing law or for establishing new law, the judge
shall immediately deny the petition and affirm the
directive or any part of the directive that is the
subject of the petition and order the recipient to
comply with the directive or any part of it. Upon
making such a determination or promptly thereafter, the
judge shall provide a written statement for the record
of the reasons for a determination under this
subparagraph.
``(E) Procedures for plenary review.--If a judge
determines that a petition described in subparagraph
(C) requires plenary review, the judge shall affirm,
modify, or set aside the directive that is the subject
of that petition not later than 30 days after being
assigned the petition, unless the judge, by order for
reasons stated, extends that time as necessary to
comport with the due process clause of the fifth
amendment to the Constitution of the United States.
Unless the judge sets aside the directive, the judge
shall immediately affirm or affirm with modifications
the directive, and order the recipient to comply with
the directive in its entirety or as modified. The judge
shall provide a written statement for the records of
the reasons for a determination under this
subparagraph.
``(F) Continued effect.--Any directive not
explicitly modified or set aside under this paragraph
shall remain in full effect.
``(G) 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.
``(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, which shall
have jurisdiction to review such a petition.
``(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 filed under subparagraph (A) shall issue an
order requiring the electronic communication service
provider to comply with the directive or any part of
it, as issued or as modified, if the judge finds that
the directive meets the requirements of this section,
and is otherwise lawful.
``(D) Procedures for review.--The judge shall
render a determination not later than 30 days after
being assigned a petition filed under subparagraph (A),
unless the judge, by order for reasons stated, extends
that time if necessary to comport with the due process
clause of the fifth amendment to the Constitution of
the United States. The judge shall provide a written
statement for the record of the reasons for a
determination under this paragraph.
``(E) 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.
``(F) Process.--Any process under this paragraph
may be served in any judicial district in which the
electronic communication service provider may be found.
``(6) Appeal.--
``(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).
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.
``(h) Judicial Review of Certifications and Procedures.--
``(1) In general.--
``(A) Review by the foreign intelligence
surveillance court.--The Foreign Intelligence
Surveillance Court shall have jurisdiction to review
any certification required by subsection (c) and the
targeting and minimization procedures adopted pursuant
to subsections (d) and (e).
``(B) Submission to the court.--The Attorney
General shall submit to the Court any such
certification or procedure, or amendment thereto, not
later than 5 days after making or amending the
certification or adopting or amending the procedures.
``(2) Certifications.--The Court shall review a
certification provided under subsection (f) to determine
whether the certification contains all the required elements.
``(3) Targeting procedures.--The Court shall review the
targeting procedures required by subsection (d) to assess
whether the procedures are reasonably designed to 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 does not result in the
intentional acquisition of any communication as to which the
sender and all intended recipients are known at the time of the
acquisition to be located in the United States.
``(4) Minimization procedures.--The Court shall review the
minimization procedures required by subsection (e) to assess
whether such procedures meet the definition of minimization
procedures under section 101(h) or section 301(4).
``(5) Orders.--
``(A) Approval.--If the Court finds that a
certification required by subsection (f) contains all
of the required elements and that the targeting and
minimization procedures required by subsections (d) and
(e) are consistent with the requirements of those
subsections and with the fourth amendment to the
Constitution of the United States, the Court shall
enter an order approving the continued use of the
procedures for the acquisition authorized under
subsection (a).
``(B) Correction of deficiencies.--If the Court
finds that a certification required by subsection (f)
does not contain all of the required elements, or that
the procedures required by subsections (d) and (e) 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).
``(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.
``(6) Appeal.--
``(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) Continuation of acquisition pending rehearing
or appeal.--Any acquisitions affected by an order under
paragraph (5)(B) may continue--
``(i) during the pendency of any rehearing
of the order by the Court en banc; and
``(ii) if the Government appeals an order
under this section, until the Court of Review
enters an order under subparagraph (C).
``(C) Implementation pending appeal.--Not later
than 60 days after the filing of an appeal of an order
under paragraph (5)(B) directing the correction of a
deficiency, the Court of Review shall determine, and
enter a corresponding order regarding, whether all or
any part of the correction order, as issued or
modified, shall be implemented during the pendency of
the appeal.
``(D) 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.
``(i) Expedited Judicial Proceedings.--Judicial proceedings under
this section shall be conducted as expeditiously as possible.
``(j) Maintenance and Security of Records and Proceedings.--
``(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.
``(k) Assessments and Reviews.--
``(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 (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) with respect to their
department, agency, or element--
``(A) are authorized to review the compliance with
the targeting and minimization procedures required by
subsections (d) and (e);
``(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, to the extent possible, whether their
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.
``(3) Annual review.--
``(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;
``(iii) the number of targets that were
later determined to be located in the United
States and, to the extent possible, whether
their communications were reviewed; and
``(iv) a description of any procedures
developed by the head of an element of the
intelligence community and approved by the
Director of National Intelligence to assess, in
a manner consistent with national security,
operational requirements and the privacy
interests of United States persons, the extent
to which the acquisitions authorized under
subsection (a) acquire the communications of
United States persons, as well as the results
of any such assessment.
``(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.--The head of each
element of the intelligence community that conducts an
annual review under subparagraph (A) shall provide such
review to--
``(i) the Foreign Intelligence Surveillance
Court;
``(ii) the Attorney General;
``(iii) the Director of National
Intelligence; and
``(iv) the congressional intelligence
committees.
``SEC. 704. CERTAIN ACQUISITIONS INSIDE THE UNITED STATES OF UNITED
STATES PERSONS OUTSIDE THE UNITED STATES.
``(a) Jurisdiction of the Foreign Intelligence Surveillance
Court.--
``(1) In general.--The Foreign Intelligence Surveillance
Court shall have jurisdiction to enter an order approving the
targeting of a United States person reasonably believed to be
located outside the United States to acquire foreign
intelligence information, if such acquisition constitutes
electronic surveillance (as defined in section 101(f),
regardless of the limitation of section 701) or the acquisition
of stored electronic communications or stored electronic data
that requires an order under this Act, and such acquisition is
conducted within the United States.
``(2) Limitation.--In the event that a United States person
targeted under this subsection is reasonably believed to be
located in the United States during the pendency of an order
issued pursuant to subsection (c), such acquisition shall cease
until authority, other than under this section, is obtained
pursuant to this Act or the targeted United States person is
again reasonably believed to be located outside the United
States during the pendency of an order issued pursuant to
subsection (c).
``(b) Application.--
``(1) In general.--Each application for an order under this
section shall be made by a Federal officer in writing upon oath
or affirmation to a judge having jurisdiction under subsection
(a)(1). Each application shall require the approval of the
Attorney General based upon the Attorney General's finding that
it satisfies the criteria and requirements of such application,
as set forth in this section, and shall include--
``(A) the identity of the Federal officer making
the application;
``(B) the identity, if known, or a description of
the United States person who is the target of the
acquisition;
``(C) a statement of the facts and circumstances
relied upon to justify the applicant's belief that the
United States person who is the target of the
acquisition is--
``(i) a person reasonably believed to be
located outside the United States; and
``(ii) a foreign power, an agent of a
foreign power, or an officer or employee of a
foreign power;
``(D) a statement of the proposed minimization
procedures that meet the definition of minimization
procedures under section 101(h) or section 301(4);
``(E) a description of the nature of the
information sought and the type of communications or
activities to be subjected to acquisition;
``(F) a certification made by the Attorney General
or an official specified in section 104(a)(6) that--
``(i) the certifying official deems the
information sought to be foreign intelligence
information;
``(ii) a significant purpose of the
acquisition is to obtain foreign intelligence
information;
``(iii) such information cannot reasonably
be obtained by normal investigative techniques;
``(iv) designates the type of foreign
intelligence information being sought according
to the categories described in section 101(e);
and
``(v) includes a statement of the basis for
the certification that--
``(I) the information sought is the
type of foreign intelligence
information designated; and
``(II) such information cannot
reasonably be obtained by normal
investigative techniques;
``(G) a summary statement of the means by which the
acquisition will be conducted and whether physical
entry is required to effect the acquisition;
``(H) the identity of any electronic communication
service provider necessary to effect the acquisition,
provided, however, that the application is not required
to identify the specific facilities, places, premises,
or property at which the acquisition authorized under
this section will be directed or conducted;
``(I) a statement of the facts concerning any
previous applications that have been made to any judge
of the Foreign Intelligence Surveillance Court
involving the United States person specified in the
application and the action taken on each previous
application; and
``(J) a statement of the period of time for which
the acquisition is required to be maintained, provided
that such period of time shall not exceed 90 days per
application.
``(2) Other requirements of the attorney general.--The
Attorney General may require any other affidavit or
certification from any other officer in connection with the
application.
``(3) Other requirements of the judge.--The judge may
require the applicant to furnish such other information as may
be necessary to make the findings required by subsection
(c)(1).
``(c) Order.--
``(1) Findings.--Upon an application made pursuant to
subsection (b), the Foreign Intelligence Surveillance Court
shall enter an ex parte order as requested or as modified
approving the acquisition if the Court finds that--
``(A) the application has been made by a Federal
officer and approved by the Attorney General;
``(B) on the basis of the facts submitted by the
applicant, for the United States person who is the
target of the acquisition, there is probable cause to
believe that the target is--
``(i) a person reasonably believed to be
located outside the United States; and
``(ii) a foreign power, an agent of a
foreign power, or an officer or employee of a
foreign power;
``(C) the proposed minimization procedures meet the
definition of minimization procedures under section
101(h) or section 301(4); and
``(D) the application which has been filed contains
all statements and certifications required by
subsection (b) and the certification or certifications
are not clearly erroneous on the basis of the statement
made under subsection (b)(1)(F)(v) and any other
information furnished under subsection (b)(3).
``(2) Probable cause.--In determining whether or not
probable cause exists for purposes of an order under paragraph
(1), a judge having jurisdiction under subsection (a)(1) may
consider past activities of the target, as well as facts and
circumstances relating to current or future activities of the
target. However, no United States person may be considered a
foreign power, agent of a foreign power, or officer or employee
of a foreign power solely upon the basis of activities
protected by the first amendment to the Constitution of the
United States.
``(3) Review.--
``(A) Limitation on review.--Review by a judge
having jurisdiction under subsection (a)(1) shall be
limited to that required to make the findings described
in paragraph (1).
``(B) Review of probable cause.--If the judge
determines that the facts submitted under subsection
(b) are insufficient to establish probable cause to
issue an order under paragraph (1), the judge 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 pursuant to subsection (f).
``(C) Review of minimization procedures.--If the
judge determines that the proposed minimization
procedures required under paragraph (1)(C) do not meet
the definition of minimization procedures under section
101(h) or section 301(4), the judge 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
pursuant to subsection (f).
``(D) Review of certification.--If the judge
determines that an application required by subsection
(b) does not contain all of the required elements, or
that the certification or certifications are clearly
erroneous on the basis of the statement made under
subsection (b)(1)(F)(v) and any other information
furnished under subsection (b)(3), the judge 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 pursuant to subsection (f).
``(4) Specifications.--An order approving an acquisition
under this subsection shall specify--
``(A) the identity, if known, or a description of
the United States person who is the target of the
acquisition identified or described in the application
pursuant to subsection (b)(1)(B);
``(B) if provided in the application pursuant to
subsection (b)(1)(H), the nature and location of each
of the facilities or places at which the acquisition
will be directed;
``(C) the nature of the information sought to be
acquired and the type of communications or activities
to be subjected to acquisition;
``(D) the means by which the acquisition will be
conducted and whether physical entry is required to
effect the acquisition; and
``(E) the period of time during which the
acquisition is approved.
``(5) Directions.--An order approving acquisitions under
this subsection shall direct--
``(A) that the minimization procedures be followed;
``(B) an electronic communication service provider
to provide to the Government forthwith all information,
facilities, or assistance necessary to accomplish the
acquisition authorized under this subsection 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;
``(C) an electronic communication service provider
to maintain under security procedures approved by the
Attorney General any records concerning the acquisition
or the aid furnished that such electronic communication
service provider wishes to maintain; and
``(D) that the Government compensate, at the
prevailing rate, such electronic communication service
provider for providing such information, facilities, or
assistance.
``(6) Duration.--An order approved under this paragraph
shall be effective for a period not to exceed 90 days and such
order may be renewed for additional 90-day periods upon
submission of renewal applications meeting the requirements of
subsection (b).
``(7) Compliance.--At or prior to the end of the period of
time for which an acquisition is approved by an order or
extension under this section, the judge may assess compliance
with the minimization procedures by reviewing the circumstances
under which information concerning United States persons was
acquired, retained, or disseminated.
``(d) Emergency Authorization.--
``(1) Authority for emergency authorization.--
Notwithstanding any other provision of this Act, if the
Attorney General reasonably determines that--
``(A) an emergency situation exists with respect to
the acquisition of foreign intelligence information for
which an order may be obtained under subsection (c)
before an order authorizing such acquisition can with
due diligence be obtained, and
``(B) the factual basis for issuance of an order
under this subsection to approve such acquisition
exists,
the Attorney General may authorize the emergency acquisition if
a judge having jurisdiction under subsection (a)(1) is informed
by the Attorney General, or a designee of the Attorney General,
at the time of such authorization that the decision has been
made to conduct such acquisition and if an application in
accordance with this subsection is made to a judge of the
Foreign Intelligence Surveillance Court as soon as practicable,
but not more than 7 days after the Attorney General authorizes
such acquisition.
``(2) Minimization procedures.--If the Attorney General
authorizes such emergency acquisition, the Attorney General
shall require that the minimization procedures required by this
section for the issuance of a judicial order be followed.
``(3) Termination of emergency authorization.--In the
absence of a judicial order approving such acquisition, the
acquisition shall terminate when the information sought is
obtained, when the application for the order is denied, or
after the expiration of 7 days from the time of authorization
by the Attorney General, whichever is earliest.
``(4) Use of information.--In the event that such
application for approval is denied, or in any other case where
the acquisition is terminated and no order is issued approving
the acquisition, no information obtained or evidence derived
from such acquisition, except under circumstances in which the
target of the acquisition is determined not to be a United
States person during the pendency of the 7-day emergency
acquisition period, 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.
``(e) 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 an order or request for
emergency assistance issued pursuant to subsections (c) or (d).
``(f) Appeal.--
``(1) Appeal to the foreign intelligence surveillance court
of review.--The Government may file an appeal with the Foreign
Intelligence Surveillance Court of Review for review of an
order issued pursuant to subsection (c). The Court of Review
shall have jurisdiction to consider such appeal and shall
provide a written statement for the record of the reasons for a
decision under this paragraph.
``(2) Certiorari to the supreme court.--The Government may
file a petition for a writ of certiorari for review of the
decision of the Court of Review issued under paragraph (1). 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.
``SEC. 705. OTHER ACQUISITIONS TARGETING UNITED STATES PERSONS OUTSIDE
THE UNITED STATES.
``(a) Jurisdiction and Scope.--
``(1) Jurisdiction.--The Foreign Intelligence Surveillance
Court shall have jurisdiction to enter an order pursuant to
subsection (c).
``(2) Scope.--No element of the intelligence community may
intentionally target, for the purpose of acquiring foreign
intelligence information, a United States person reasonably
believed to be located outside the United States under
circumstances in which the targeted United States person has a
reasonable expectation of privacy and a warrant would be
required if the acquisition were conducted inside the United
States for law enforcement purposes, unless a judge of the
Foreign Intelligence Surveillance Court has entered an order or
the Attorney General has authorized an emergency acquisition
pursuant to subsections (c) or (d) or any other provision of
this Act.
``(3) Limitations.--
``(A) Moving or misidentified targets.--In the
event that the targeted United States person is
reasonably believed to be in the United States during
the pendency of an order issued pursuant to subsection
(c), such acquisition shall cease until authority is
obtained pursuant to this Act or the targeted United
States person is again reasonably believed to be
located outside the United States during the pendency
of an order issued pursuant to subsection (c).
``(B) Applicability.--If the acquisition is to be
conducted inside the United States and could be
authorized under section 704, the procedures of section
704 shall apply, unless an order or emergency
acquisition authority has been obtained under a
provision of this Act other than under this section.
``(b) Application.--Each application for an order under this
section shall be made by a Federal officer in writing upon oath or
affirmation to a judge having jurisdiction under subsection (a)(1).
Each application shall require the approval of the Attorney General
based upon the Attorney General's finding that it satisfies the
criteria and requirements of such application as set forth in this
section and shall include--
``(1) the identity, if known, or a description of the
specific United States person who is the target of the
acquisition;
``(2) a statement of the facts and circumstances relied
upon to justify the applicant's belief that the United States
person who is the target of the acquisition is--
``(A) a person reasonably believed to be located
outside the United States; and
``(B) a foreign power, an agent of a foreign power,
or an officer or employee of a foreign power;
``(3) a statement of the proposed minimization procedures
that meet the definition of minimization procedures under
section 101(h) or section 301(4);
``(4) a certification made by the Attorney General, an
official specified in section 104(a)(6), or the head of an
element of the intelligence community that--
``(A) the certifying official deems the information
sought to be foreign intelligence information; and
``(B) a significant purpose of the acquisition is
to obtain foreign intelligence information;
``(5) a statement of the facts concerning any previous
applications that have been made to any judge of the Foreign
Intelligence Surveillance Court involving the United States
person specified in the application and the action taken on
each previous application; and
``(6) a statement of the period of time for which the
acquisition is required to be maintained, provided that such
period of time shall not exceed 90 days per application.
``(c) Order.--
``(1) Findings.--If, upon an application made pursuant to
subsection (b), a judge having jurisdiction under subsection
(a) finds that--
``(A) on the basis of the facts submitted by the
applicant, for the United States person who is the
target of the acquisition, there is probable cause to
believe that the target is--
``(i) a person reasonably believed to be
located outside the United States; and
``(ii) a foreign power, an agent of a
foreign power, or an officer or employee of a
foreign power;
``(B) the proposed minimization procedures, with
respect to their dissemination provisions, meet the
definition of minimization procedures under section
101(h) or section 301(4); and
``(C) the application which has been filed contains
all statements and certifications required by
subsection (b) and the certification provided under
subsection (b)(4) is not clearly erroneous on the basis
of the information furnished under subsection (b),
the Court shall issue an ex parte order so stating.
``(2) Probable cause.--In determining whether or not
probable cause exists for purposes of an order under paragraph
(1)(A), a judge having jurisdiction under subsection (a)(1) may
consider past activities of the target, as well as facts and
circumstances relating to current or future activities of the
target. However, no United States person may be considered a
foreign power, agent of a foreign power, or officer or employee
of a foreign power solely upon the basis of activities
protected by the first amendment to the Constitution of the
United States.
``(3) Review.--
``(A) Limitations on review.--Review by a judge
having jurisdiction under subsection (a)(1) shall be
limited to that required to make the findings described
in paragraph (1). The judge shall not have jurisdiction
to review the means by which an acquisition under this
section may be conducted.
``(B) Review of probable cause.--If the judge
determines that the facts submitted under subsection
(b) are insufficient to establish probable cause to
issue an order under this subsection, the judge 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 pursuant to subsection (e).
``(C) Review of minimization procedures.--If the
judge determines that the minimization procedures
applicable to dissemination of information obtained
through an acquisition under this subsection do not
meet the definition of minimization procedures under
section 101(h) or section 301(4), the judge 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
pursuant to subsection (e).
``(D) Scope of review of certification.--If the
judge determines that the certification provided under
subsection (b)(4) is clearly erroneous on the basis of
the information furnished under subsection (b), the
judge 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 subparagraph pursuant to subsection (e).
``(4) Duration.--An order under this paragraph shall be
effective for a period not to exceed 90 days and such order may
be renewed for additional 90-day periods upon submission of
renewal applications meeting the requirements of subsection
(b).
``(5) Compliance.--At or prior to the end of the period of
time for which an order or extension is granted under this
section, the judge may assess compliance with the minimization
procedures by reviewing the circumstances under which
information concerning United States persons was disseminated,
provided that the judge may not inquire into the circumstances
relating to the conduct of the acquisition.
``(d) Emergency Authorization.--
``(1) Authority for emergency authorization.--
Notwithstanding any other provision in this subsection, if the
Attorney General reasonably determines that--
``(A) an emergency situation exists with respect to
the acquisition of foreign intelligence information for
which an order may be obtained under subsection (c)
before an order under that subsection may, with due
diligence, be obtained, and
``(B) the factual basis for issuance of an order
under this section exists,
the Attorney General may authorize the emergency acquisition if
a judge having jurisdiction under subsection (a)(1) is informed
by the Attorney General or a designee of the Attorney General
at the time of such authorization that the decision has been
made to conduct such acquisition and if an application in
accordance with this subsection is made to a judge of the
Foreign Intelligence Surveillance Court as soon as practicable,
but not more than 7 days after the Attorney General authorizes
such acquisition.
``(2) Minimization procedures.--If the Attorney General
authorizes such emergency acquisition, the Attorney General
shall require that the minimization procedures required by this
section be followed.
``(3) Termination of emergency authorization.--In the
absence of an order under subsection (c), the acquisition shall
terminate when the information sought is obtained, if the
application for the order is denied, or after the expiration of
7 days from the time of authorization by the Attorney General,
whichever is earliest.
``(4) Use of information.--In the event that such
application is denied, or in any other case where the
acquisition is terminated and no order is issued approving the
acquisition, no information obtained or evidence derived from
such acquisition, except under circumstances in which the
target of the acquisition is determined not to be a United
States person during the pendency of the 7-day emergency
acquisition period, 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.
``(e) Appeal.--
``(1) Appeal to the court of review.--The Government may
file an appeal with the Foreign Intelligence Surveillance Court
of Review for review of an order issued pursuant to subsection
(c). The Court of Review shall have jurisdiction to consider
such appeal and shall provide a written statement for the
record of the reasons for a decision under this paragraph.
``(2) Certiorari to the supreme court.--The Government may
file a petition for a writ of certiorari for review of the
decision of the Court of Review issued under paragraph (1). 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.
``SEC. 706. JOINT APPLICATIONS AND CONCURRENT AUTHORIZATIONS.
``(a) Joint Applications and Orders.--If an acquisition targeting a
United States person under section 704 or section 705 is proposed to be
conducted both inside and outside the United States, a judge having
jurisdiction under section 704(a)(1) or section 705(a)(1) may issue
simultaneously, upon the request of the Government in a joint
application complying with the requirements of section 704(b) or
section 705(b), orders under section 704(c) or section 705(c), as
applicable.
``(b) Concurrent Authorization.--If an order authorizing electronic
surveillance or physical search has been obtained under section 105 or
section 304 and that order is still in effect, the Attorney General may
authorize, without an order under section 704 or section 705, an
acquisition of foreign intelligence information targeting that United
States person while such person is reasonably believed to be located
outside the United States.
``SEC. 707. USE OF INFORMATION ACQUIRED UNDER TITLE VII.
``(a) Information Acquired Under Section 703.--Information acquired
from an acquisition conducted under section 703 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) Information Acquired Under Section 704.--Information acquired
from an acquisition conducted under section 704 shall be deemed to be
information acquired from an electronic surveillance pursuant to title
I for purposes of section 106.
``SEC. 708. CONGRESSIONAL OVERSIGHT.
``(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 title.
``(b) Content.--Each report made under subparagraph (a) shall
include--
``(1) with respect to section 703--
``(A) any certifications made under subsection
703(f) during the reporting period;
``(B) any directives issued under subsection 703(g)
during the reporting period;
``(C) a description of 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 section;
``(D) any actions taken to challenge or enforce a
directive under paragraphs (4) or (5) of section
703(g);
``(E) any compliance reviews conducted by the
Department of Justice or the Office of the Director of
National Intelligence of acquisitions authorized under
subsection 703(a);
``(F) a description of any incidents of
noncompliance with a directive issued by the Attorney
General and the Director of National Intelligence under
subsection 703(g), including--
``(i) incidents of noncompliance by an
element of the intelligence community with
procedures adopted pursuant to subsections (d)
and (e) of section 703; and
``(ii) incidents of noncompliance by a
specified person to whom the Attorney General
and Director of National Intelligence issued a
directive under subsection 703(g); and
``(G) any procedures implementing this section;
``(2) with respect to section 704--
``(A) the total number of applications made for
orders under section 704(b);
``(B) the total number of such orders either
granted, modified, or denied; and
``(C) the total number of emergency acquisitions
authorized by the Attorney General under section 704(d)
and the total number of subsequent orders approving or
denying such acquisitions; and
``(3) with respect to section 705--
``(A) the total number of applications made for
orders under 705(b);
``(B) the total number of such orders either
granted, modified, or denied; and
``(C) the total number of emergency acquisitions
authorized by the Attorney General under subsection
705(d) and the total number of subsequent orders
approving or denying such applications.''.
(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 REGARDING CERTAIN PERSONS OUTSIDE
THE UNITED STATES
``Sec. 701. Limitation on definition of electronic surveillance.
``Sec. 702. Definitions.
``Sec. 703. Procedures for targeting certain persons outside the United
States other than United States persons.
``Sec. 704. Certain acquisitions inside the United States of United
States persons outside the United States.
``Sec. 705. Other acquisitions targeting United States persons outside
the United States.
``Sec. 706. Joint applications and concurrent authorizations.
``Sec. 707. Use of information acquired under title VII.
``Sec. 708. Congressional oversight.''.
(c) Technical and Conforming Amendments.--
(1) Title 18, united states code.--
(A) Section 2232.--Section 2232(e) of title 18,
United States Code, is amended by inserting ``(as
defined in section 101(f) of the Foreign Intelligence
Surveillance Act of 1978, regardless of the limitation
of section 701 of that Act)'' after ``electronic
surveillance''.
(B) Section 2511.--Section 2511(2)(a)(ii)(A) of
title 18, United States Code, is amended by inserting
``or a court order pursuant to section 705 of the
Foreign Intelligence Surveillance Act of 1978'' after
``assistance''.
(2) Foreign intelligence surveillance act of 1978.--
(A) Section 109.--Section 109 of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1809)
is amended by adding at the end the following:
``(e) Definition.--For the purpose of this section, the term
`electronic surveillance' means electronic surveillance as defined in
section 101(f) of this Act regardless of the limitation of section 701
of this Act.''.
(B) Section 110.--Section 110 of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1810)
is amended by--
(i) adding an ``(a)'' before ``Civil
Action'';
(ii) redesignating subsections (a) through
(c) as paragraphs (1) through (3),
respectively; and
(iii) adding at the end the following:
``(b) Definition.--For the purpose of this section, the term
`electronic surveillance' means electronic surveillance as defined in
section 101(f) of this Act regardless of the limitation of section 701
of this Act.''.
(C) Section 601.--Section 601(a)(1) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C.
1871(a)(1)) is amended by striking subparagraphs (C)
and (D) and inserting the following:
``(C) pen registers under section 402;
``(D) access to records under section 501;
``(E) acquisitions under section 704; and
``(F) acquisitions under section 705;''.
(d) Termination of Authority.--
(1) In general.--Except as provided in paragraph (2), the
amendments made by subsections (a)(2), (b), and (c) shall cease
to have effect on December 31, 2013.
(2) Continuing applicability.--Section 703(g)(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 703(g) of that Act (as so
amended) for information, facilities, or assistance provided
during the period such directive was or is in effect. Section
704(e) of the Foreign Intelligence Surveillance Act of 1978 (as
amended by subsection (a)) shall remain in effect with respect
to an order or request for emergency assistance under that
section. The use of information acquired by an acquisition
conducted under section 703 of that Act (as so amended) shall
continue to be governed by the provisions of section 707 of
that Act (as so amended).
SEC. 102. STATEMENT OF EXCLUSIVE MEANS BY WHICH ELECTRONIC SURVEILLANCE
AND INTERCEPTION OF DOMESTIC 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 domestic communications may be conducted
``Sec. 112. The procedures of chapters 119, 121, and 206 of title
18, United States Code, and this Act shall be the exclusive means by
which electronic surveillance (as defined in section 101(f), regardless
of the limitation of section 701) and the interception of domestic
wire, oral, or electronic communications may be conducted.''.
(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 adding after the item relating to section 111, the
following:
``Sec. 112. Statement of exclusive means by which electronic
surveillance and interception of domestic
communications may be conducted.''.
(c) Conforming Amendments.--Section 2511(2) of title 18, United
States Code, is amended in paragraph (f), by striking ``, as defined in
section 101 of such Act,'' and inserting ``(as defined in section
101(f) of such Act regardless of the limitation of section 701 of such
Act)''.
SEC. 103. SUBMITTAL TO CONGRESS OF CERTAIN COURT ORDERS UNDER THE
FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.
(a) Inclusion of Certain Orders in Semiannual 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:
``(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, applications, or memoranda of law
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
any pleadings, applications, or memoranda of law 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 2008 and not previously submitted in a
report under subsection (a).
``(d) Protection of National Security.--The Attorney General, in
consultation with the Director of National Intelligence, may authorize
redactions of materials described in subsection (c) that are provided
to the committees of Congress referred to in subsection (a), if such
redactions are necessary to protect the national security of the United
States and are limited to sensitive sources and methods information or
the identities of targets.''.
(c) Definitions.--Such section 601, as amended by subsections (a)
and (b), is further amended by adding at the end the following:
``(e) Definitions.--In this section:
``(1) Foreign intelligence surveillance court; court.--The
term ```Foreign Intelligence Surveillance Court''' means the
court established by section 103(a).
``(2) Foreign intelligence surveillance court of review;
court of review.--The term `Foreign Intelligence Surveillance
Court of Review' means the court established by section
103(b).''.
SEC. 104. APPLICATIONS FOR COURT ORDERS.
Section 104 of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1804) is amended--
(1) in subsection (a)--
(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 designated by the
President as a certifying official--'';
(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--
(1) in subsection (a)--
(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) reasonably 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) resonably 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 7 days 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 7 days 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--
(1) in subsection (a)--
(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 designated by the
President as a certifying official--''; 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--
(1) in subsection (a)--
(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 reasonably--
``(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 7 days 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 7 days 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 ``7 days''; and
(2) in subsection (c)(1)(C), by striking ``48 hours'' and
inserting ``7 days''.
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''.
(b) En Banc Authority.--
(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
703(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.''.
(d) Authority of Foreign Intelligence Surveillance Court.--Section
103 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1803), as amended by this Act, is amended by adding at the end the
following:
``(h)(1) Nothing in this Act shall be considered to reduce or
contravene the inherent authority of the Foreign Intelligence
Surveillance Court to determine, or enforce, compliance with an order
or a rule of such Court or with a procedure approved by such Court.
``(2) In this subsection, the terms `Foreign Intelligence
Surveillance Court' and `Court' mean the court established by
subsection (a).''.
SEC. 110. WEAPONS OF MASS DESTRUCTION.
(a) Definitions.--
(1) Foreign power.--Subsection (a)(4) of section 101 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1801(a)(4)) is amended by inserting ``, the international
proliferation of weapons of mass destruction,'' after
``international terrorism''.
(2) Agent of a foreign power.--Subsection (b)(1) of such
section 101 is amended--
(A) in subparagraph (B), by striking ``or'' at the
end;
(B) in subparagraph (C), by striking ``or'' at the
end; and
(C) by adding at the end the following new
subparagraphs:
``(D) engages in the international proliferation of
weapons of mass destruction, or activities in
preparation therefor; or
``(E) engages in the international proliferation of
weapons of mass destruction, or activities in
preparation therefor, for or on behalf of a foreign
power; or''.
(3) Foreign intelligence information.--Subsection (e)(1)(B)
of such section 101 is amended by striking ``sabotage or
international terrorism'' and inserting ``sabotage,
international terrorism, or the international proliferation of
weapons of mass destruction''.
(4) Weapon of mass destruction.--Such section 101 is
amended by inserting after subsection (o) the following:
``(p) `Weapon of mass destruction' means--
``(1) any destructive device described in section
921(a)(4)(A) of title 18, United States Code, that is intended
or has the capability to cause death or serious bodily injury
to a significant number of people;
``(2) any weapon that is designed or intended to cause
death or serious bodily injury through the release,
dissemination, or impact of toxic or poisonous chemicals or
their precursors;
``(3) any weapon involving a biological agent, toxin, or
vector (as such terms are defined in section 178 of title 18,
United States Code); or
``(4) any weapon that is designed to release radiation or
radioactivity at a level dangerous to human life.''.
(b) Use of Information.--
(1) In general.--Section 106(k)(1)(B) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1806(k)(1)(B))
is amended by striking ``sabotage or international terrorism''
and inserting ``sabotage, international terrorism, or the
international proliferation of weapons of mass destruction''.
(2) Physical searches.--Section 305(k)(1)(B) of such Act
(50 U.S.C. 1825(k)(1)(B)) is amended by striking ``sabotage or
international terrorism'' and inserting ``sabotage,
international terrorism, or the international proliferation of
weapons of mass destruction''.
(c) Technical and Conforming Amendment.--Section 301(1) of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1821(1)) is
amended by inserting ```weapon of mass destruction','' after
```person',''.
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 703''; and
(2) in paragraph (2), by striking ``105B(h) or 501(f)(1)''
and inserting ``501(f)(1) or 703''.
TITLE II--PROTECTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS
SEC. 201. DEFINITIONS.
In this title:
(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.
(a) Limitations.--
(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.
``In this title:
``(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 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 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 2008 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 2008, 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--
``(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) Removal.--A civil action against a person for providing
assistance to an element of the intelligence community 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.
``(d) Relationship to Other Laws.--Nothing in this section may be
construed to limit any otherwise available immunity, privilege, or
defense under any other provision of law.
``(e) Applicability.--This section shall apply to a civil action
pending on or filed after the date of enactment of the FISA Amendments
Act of 2008.''.
SEC. 204. PREEMPTION OF STATE INVESTIGATIONS.
Title VIII of the Foreign Intelligence Surveillance Act (50 U.S.C.
1801 et seq.), as added by section 203 of this Act, is amended by
adding at the end the following new section:
``SEC. 803. PREEMPTION.
``(a) In General.--No State shall have authority to--
``(1) conduct an investigation into an electronic
communication service provider's alleged assistance to an
element of the intelligence community;
``(2) require through regulation or any other means the
disclosure of information about an electronic communication
service provider's alleged assistance to an element of the
intelligence community;
``(3) impose any administrative sanction on an electronic
communication service provider for assistance to an element of
the intelligence community; or
``(4) commence or maintain a civil action or other
proceeding to enforce a requirement that an electronic
communication service provider disclose information concerning
alleged assistance to an element of the intelligence community.
``(b) Suits by the United States.--The United States may bring suit
to enforce the provisions of this section.
``(c) Jurisdiction.--The district courts of the United States shall
have jurisdiction over any civil action brought by the United States to
enforce the provisions of this section.
``(d) Application.--This section shall apply to any investigation,
action, or proceeding that is pending on or filed after the date of
enactment of the FISA Amendments Act of 2008.''.
SEC. 205. TECHNICAL AMENDMENTS.
The table of contents in the first section of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), as
amended by section 101(b), is further amended by adding at the end the
following:
``TITLE VIII--PROTECTION OF PERSONS ASSISTING THE GOVERNMENT
``Sec. 801. Definitions.
``Sec. 802. Procedures for implementing statutory defenses.
``Sec. 803. Preemption.''.
TITLE III--OTHER PROVISIONS
SEC. 301. SEVERABILITY.
If any provision of this Act, any amendment made by this Act, or
the application thereof to any person or circumstances is held invalid,
the validity of the remainder of the Act, any such amendments, and of
the application of such provisions to other persons and circumstances
shall not be affected thereby.
SEC. 302. EFFECTIVE DATE; REPEAL; TRANSITION PROCEDURES.
(a) In General.--Except as provided in subsection (c), the
amendments made by this Act shall take effect on the date of the
enactment of this Act.
(b) Repeal.--
(1) In general.--Except as provided in subsection (c),
sections 105A, 105B, and 105C of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1805a, 1805b, and 1805c)
are repealed.
(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 striking the items
relating to sections 105A, 105B, and 105C.
(c) Transitions Procedures.--
(1) Protection from liability.--Notwithstanding subsection
(b)(1), subsection (l) of section 105B of the Foreign
Intelligence Surveillance Act of 1978 shall remain in effect
with respect to any directives issued pursuant to such section
105B for information, facilities, or assistance provided during
the period such directive was or is in effect.
(2) Orders in effect.--
(A) Orders in effect on date of enactment.--
Notwithstanding any other provision of this Act or of
the Foreign Intelligence Surveillance Act of 1978--
(i) any order in effect on the date of
enactment of this Act issued pursuant to the
Foreign Intelligence Surveillance Act of 1978
or section 6(b) of the Protect America Act of
2007 (Public Law 110-55; 121 Stat. 556) shall
remain in effect until the date of expiration
of such order; and
(ii) 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 reauthorize such
order if the facts and circumstances continue
to justify issuance of such order under the
provisions of such Act, as in effect on the day
before the date of the enactment of the Protect
America Act of 2007, except as amended by
sections 102, 103, 104, 105, 106, 107, 108,
109, and 110 of this Act.
(B) Orders in effect on december 31, 2013.--Any
order issued under title VII of the Foreign
Intelligence Surveillance Act of 1978, as amended by
section 101 of this Act, in effect on December 31,
2013, shall continue in effect until the date of the
expiration of such order. Any such order shall be
governed by the applicable provisions of the Foreign
Intelligence Surveillance Act of 1978, as so amended.
(3) Authorizations and directives in effect.--
(A) Authorizations and directives in effect on date
of enactment.--Notwithstanding any other provision of
this Act or of the Foreign Intelligence Surveillance
Act of 1978, any authorization or directive in effect
on the date of the enactment of this Act issued
pursuant to the Protect America Act of 2007, or any
amendment made by that Act, shall remain in effect
until the date of expiration of such authorization or
directive. Any such authorization or directive shall be
governed by the applicable provisions of the Protect
America Act of 2007 (121 Stat. 552), and the amendment
made by that Act, and, except as provided in paragraph
(4) of this subsection, any acquisition pursuant to
such authorization or directive shall be deemed not to
constitute electronic surveillance (as that term is
defined in section 101(f) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801(f)), as
construed in accordance with section 105A of the
Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1805a)).
(B) Authorizations and directives in effect on
december 31, 2013.--Any authorization or directive
issued under title VII of the Foreign Intelligence
Surveillance Act of 1978, as amended by section 101 of
this Act, in effect on December 31, 2013, shall
continue in effect until the date of the expiration of
such authorization or directive. Any such authorization
or directive shall be governed by the applicable
provisions of the Foreign Intelligence Surveillance Act
of 1978, as so amended, and, except as provided in
section 707 of the Foreign Intelligence Surveillance
Act of 1978, as so amended, any acquisition pursuant to
such authorization or directive shall be deemed not to
constitute electronic surveillance (as that term is
defined in section 101(f) of the Foreign Intelligence
Surveillance Act of 1978, to the extent that such
section 101(f) is limited by section 701 of the Foreign
Intelligence Surveillance Act of 1978, as so amended).
(4) Use of information acquired under protect america
act.--Information acquired from an acquisition conducted under
the Protect America Act of 2007, and the amendments made by
that Act, shall be deemed to be information acquired from an
electronic surveillance pursuant to title I of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.)
for purposes of section 106 of that Act (50 U.S.C. 1806),
except for purposes of subsection (j) of such section.
(5) New orders.--Notwithstanding any other provision of
this Act or of the Foreign Intelligence Surveillance Act of
1978--
(A) the government may file an application for an
order under the Foreign Intelligence Surveillance Act
of 1978, as in effect on the day before the date of the
enactment of the Protect America Act of 2007, except as
amended by sections 102, 103, 104, 105, 106, 107, 108,
109, and 110 of this Act; and
(B) the court established under section 103(a) of
the Foreign Intelligence Surveillance Act of 1978 shall
enter an order granting such an application if the
application meets the requirements of such Act, as in
effect on the day before the date of the enactment of
the Protect America Act of 2007, except as amended by
sections 102, 103, 104, 105, 106, 107, 108, 109, and
110 of this Act.
(6) Extant authorizations.--At the request of the
applicant, the court established under section 103(a) of the
Foreign Intelligence Surveillance Act of 1978 shall extinguish
any extant authorization to conduct electronic surveillance or
physical search entered pursuant to such Act.
(7) Applicable provisions.--Any surveillance conducted
pursuant to an order entered pursuant to this subsection shall
be subject to the provisions of the Foreign Intelligence
Surveillance Act of 1978, as in effect on the day before the
date of the enactment of the Protect America Act of 2007,
except as amended by sections 102, 103, 104, 105, 106, 107,
108, 109, and 110 of this Act.
(8) Transition procedures concerning the targeting of
united states persons overseas.--Any authorization in effect on
the date of enactment of this Act under section 2.5 of
Executive Order 12333 to intentionally target a United States
person reasonably believed to be located outside the United
States shall remain in effect, and shall constitute a
sufficient basis for conducting such an acquisition targeting a
United States person located outside the United States until
the earlier of--
(A) the date that authorization expires; or
(B) the date that is 90 days after the date of the
enactment 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.
Motion to Discharge Committee filed by Mr. Fossella. Petition No: 110-7. (<a href="http://clerk.house.gov/110/lrc/pd/Petitions/Dis7.htm">Discharge petition</a> text with signatures.)
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