Foreign Intelligence Surveillance Substitution Act of 2007 - Requires a federal or state court to substitute the United States for an electronic communication service provider with respect to any claim in a covered civil action if the Attorney General certifies to the court that either: (1) the service provider did not provide the alleged assistance; or (2) the assistance alleged to have been provided was in connection with an intelligence activity involving communications authorized by the President between September 11, 2001, and January 17, 2007, and designed to detect or prevent a terrorist attack, or activities in preparation for a terrorist attack, against the United States. Requires the alleged provider assistance to be described in a written request or directive from the Attorney General or the head of an element of the intelligence community to the electronic communication service provider indicating that the activity was authorized by the President and determined to be lawful.
Requires a federal or state court, upon receiving such a certification, to: (1) substitute the United States for the electronic communication service provider as the defendant as to all claims designated by the Attorney General in the certification; (2) dismiss all such designated claims against the provider; and (3) enter a final judgment relating to those claims.
Provides that the electronic communication service provider shall remain as a defendant if the Attorney General's certification states that not all of the alleged assistance was provided under a written request or directive.
Provides that, in a covered civil action in which the United States is substituted as a party-defendant, any plaintiff may serve third-party discovery requests to any electronic communications service provider as to which all claims are dismissed.
[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 2402 Introduced in Senate (IS)]
110th CONGRESS
1st Session
S. 2402
To provide for the substitution of the United States in certain civil
actions.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
December 3, 2007
Mr. Specter introduced the following bill; which was read twice and
referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To provide for the substitution of the United States in certain civil
actions.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Foreign Intelligence Surveillance
Substitution Act of 2007''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Assistance.--The term ``assistance'' means the
provision of, or the provision of access to, information
(including communication contents, communications records, or
other information relating to a customer or communication),
facilities, or another form of assistance.
(2) Contents.--The term ``contents'' has the meaning given
that term in section 101(n) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801(n)).
(3) Covered civil action.--The term ``covered civil
action'' means a civil action filed in a Federal or State court
that--
(A) alleges that an electronic communication
service provider furnished assistance to an element of
the intelligence community; and
(B) seeks monetary or other relief from the
electronic communication service provider related to
the provision of such assistance.
(4) Electronic communication service provider.--The term
``electronic communication service provider'' means--
(A) a telecommunications carrier, as that term is
defined in section 3 of the Communications Act of 1934
(47 U.S.C. 153);
(B) a provider of an electronic communication
service, as that term is defined in section 2510 of
title 18, United States Code;
(C) a provider of a remote computing service, as
that term is defined in section 2711 of title 18,
United States Code;
(D) any other communication service provider who
has access to wire or electronic communications either
as such communications are transmitted or as such
communications are stored;
(E) a parent, subsidiary, affiliate, successor, or
assignee of an entity described in subparagraph (A),
(B), (C), or (D); or
(F) an officer, employee, or agent of an entity
described in subparagraph (A), (B), (C), (D), or (E).
(5) Element of the intelligence community.--The term
``element of the intelligence community'' means an element of
the intelligence community specified in or designated under
section 3(4) of the National Security Act of 1947 (50 U.S.C.
401a(4)).
SEC. 3. SUBSTITUTION OF THE UNITED STATES IN CERTAIN ACTIONS.
(a) In General.--
(1) Certification.--Notwithstanding any other provision of
law, a Federal or State court shall substitute the United
States for an electronic communication service provider with
respect to any claim in a covered civil action as provided in
this subsection, if the Attorney General certifies to that
court that--
(A) with respect to that claim, the assistance
alleged to have been provided by the electronic
communication service provider was--
(i) provided in connection with an
intelligence activity involving communications
that was--
(I) authorized by the President
during the period beginning on
September 11, 2001, and ending on
January 17, 2007; and
(II) designed to detect or prevent
a terrorist attack, or activities in
preparation for a terrorist attack,
against the United States; and
(ii) described in a written request or
directive from the Attorney General or the head
of an element of the intelligence community (or
the deputy of such person) to the electronic
communication service provider indicating that
the activity was--
(I) authorized by the President;
and
(II) determined to be lawful; or
(B) the electronic communication service provider
did not provide the alleged assistance.
(2) Substitution.--
(A) In general.--Except as provided in subparagraph
(B), upon receiving a certification under paragraph
(1), a Federal or State court shall--
(i) substitute the United States for the
electronic communication service provider as
the defendant as to all claims designated by
the Attorney General in that certification; and
(ii) as to that electronic communication
service provider--
(I) dismiss all claims designated
by the Attorney General in that
certification; and
(II) enter a final judgment
relating to those claims.
(B) Continuation of certain claims.--If a
certification by the Attorney General under paragraph
(1) states that not all of the alleged assistance was
provided under a written request or directive described
in paragraph (1)(A)(ii), the electronic communication
service provider shall remain as a defendant.
(3) Procedures.--
(A) Tort claims.--Upon a substitution under
paragraph (2), for any tort claim--
(i) the claim shall be deemed to have been
filed under section 1346(b) of title 28, United
States Code, except that sections 2401(b),
2675, and 2680(a) of title 28, United States
Code, shall not apply; and
(ii) notwithstanding any other provision of
law, the claim shall be deemed timely filed
against the United States if it was timely
filed against the electronic communication
service provider.
(B) Constitutional and statutory claims.--Upon a
substitution under paragraph (2), for any claim under
the Constitution of the United States or any Federal
statute--
(i) the claim shall be deemed to have been
filed against the United States under section
1331 of title 28, United States Code;
(ii) with respect to any claim under a
Federal statute that does not provide a cause
of action against the United States, the
plaintiff shall be permitted to amend such
claim to substitute, as appropriate, a cause of
action under--
(I) section 704 of title 5, United
States Code (commonly known as the
Administrative Procedure Act);
(II) section 2712 of title 18,
United States Code; or
(III) section 110 of the Foreign
Intelligence Surveillance Act of 1978
(50 U.S.C. 1810);
(iii) notwithstanding any other provision
of law, the statutes of limitation applicable
to the causes of action identified in clause
(ii) shall not apply to any amended claim under
that clause, and any such cause of action shall
be deemed timely filed if any Federal statutory
cause of action against the electronic
communication service provider was timely
filed; and
(iv) notwithstanding any other provisions
of law, for any amended claim under clause (ii)
the United States shall be deemed a proper
defendant under any statutes described in that
clause, and any plaintiff that had standing to
proceed against the original defendant shall be
deemed an aggrieved party for purposes of
proceeding under section 2712 of title 18,
United States Code, or section 110 of the
Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1810).
(C) Discovery.--
(i) In general.--In a covered civil action
in which the United States is substituted as
party-defendant under paragraph (2), any
plaintiff may serve third-party discovery
requests to any electronic communications
service provider as to which all claims are
dismissed.
(ii) Binding the government.--If a
plaintiff in a covered civil action serves
deposition notices under rule 30(b)(6) of the
Federal Rules of Civil Procedure or requests
under rule 36 of the Federal Rules of Civil
Procedure for admission upon an electronic
communications service provider as to which all
claims were dismissed, the electronic
communications service provider shall be deemed
a party-defendant for purposes rule 30(b)(6) or
rule 36 and its answers and admissions shall be
deemed binding upon the Government.
(b) Certifications.--
(1) In general.--For purposes of substitution proceedings
under this section--
(A) a certification under subsection (a) may be
provided and reviewed in camera, ex parte, and under
seal; and
(B) for any certification provided and reviewed as
described in subparagraph (A), the court shall not
disclose or cause the disclosure of its contents.
(2) Nondelegation.--The authority and duties of the
Attorney General under this section shall be performed by the
Attorney General or a designee in a position not lower than the
Deputy Attorney General.
(c) Limitations.--This section, including any Federal statute cited
in this section that operates as a waiver of sovereign immunity,
constitute the sole waiver of sovereign immunity with respect to any
covered civil action.
(d) Civil Actions in State Court.--For purposes of section 1441 of
title 28, United States Code, any covered civil action that is brought
in a State court or administrative or regulatory bodies shall be deemed
to arise under the Constitution or laws of the United States and shall
be removable under that section.
(e) Rule of Construction.--Except as expressly provided in this
section, nothing in this section may be construed to limit any
immunity, privilege, or defense under any other provision of law,
including any privilege, immunity, or defense that would otherwise have
been available to the United States absent its substitution as party-
defendant or had the United States been the named defendant.
(f) Effective Date and Application.--This section shall apply to
any covered civil action pending on or filed after the date of
enactment of this Act.
<all>
Introduced in Senate
Sponsor introductory remarks on measure. (CR S14703-14704)
Read twice and referred to the Committee on the Judiciary.
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