[Congressional Record: August 1, 2007 (Senate)]
[Page S10619-S10621]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. McCONNELL (for himself and Mr. Bond):
S. 1927. A bill to amend the Foreign Intelligence Surveillance Act of
1978 to provide additional procedures for authorizing certain
acquisitions of foreign intelligence information and for other
purposes; read the first time.
Mr. McCONNELL. I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 1927
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 ``Protect America Act of
2007''.
SEC. 2. ADDITIONAL PROCEDURE FOR AUTHORIZING CERTAIN
ACQUISITIONS OF FOREIGN INTELLIGENCE
INFORMATION.
The Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.) is amended by inserting after section
105 the following:
``CLARIFICATION OF ELECTRONIC SURVEILLANCE OF PERSONS OUTSIDE THE
UNITED STATES
``Sec. 105A. Nothing in the definition of electronic
surveillance under section 101(f) shall be construed to
encompass surveillance directed at a person reasonably
believed to be located outside of the United States.
``ADDITIONAL PROCEDURE FOR AUTHORIZING CERTAIN ACQUISITIONS CONCERNING
PERSONS LOCATED OUTSIDE THE UNITED STATES
``Sec. 105B. (a) Notwithstanding any other law, the
Director of National Intelligence and the Attorney General,
may for periods of up to one year authorize the acquisition
of foreign intelligence information concerning persons
reasonably believed to be outside the United States if the
Director of National Intelligence and the Attorney General
determine, based on the information provided to them, that--
``(1) there are reasonable procedures in place for
determining that the acquisition of foreign intelligence
information under this section concerns persons reasonably
believed to be located outside the United States, and such
procedures will be subject to review of the Court pursuant to
section 105C of this Act;
``(2) the acquisition does not constitute electronic
surveillance;
``(3) the acquisition involves obtaining the foreign
intelligence information from or with the assistance of a
communications service provider, custodian, or other person
(including any officer, employee, agent, or other specified
person of such service provider, custodian, or other person)
who has access to communications, either as they are
transmitted or while they are stored, or equipment that is
being or may be used to transmit or store such
communications;
``(4) a significant purpose of the acquisition is to obtain
foreign intelligence information; and
``(5) the minimization procedures to be used with respect
to such acquisition activity meet the definition of
minimization procedures under section 101(h).
``This determination shall be in the form of a written
certification, under oath, supported as appropriate by
affidavit of appropriate officials in the national security
field occupying positions appointed by the President, by and
with the consent of the Senate, or the Head of any Agency of
the Intelligence Community, unless immediate action by the
Government is required and time does not permit the
preparation of a certification.
[[Page S10620]]
In such a case, the determination of the Director of National
Intelligence and the Attorney General shall be reduced to a
certification as soon as possible but in no event more than
72 hours after the determination is made.
``(b) A certification under subsection (a) is not required
to identify the specific facilities, places, premises, or
property at which the acquisition of foreign intelligence
information will be directed.
``(c) The Attorney General shall transmit as soon as
practicable under seal to the court established under section
103(a) a copy of a certification made under subsection (a).
Such certification shall be maintained under security
measures established by the Chief Justice of the United
States and the Attorney General, in consultation with the
Director of National Intelligence, and shall remain sealed
unless the certification is necessary to determine the
legality of the acquisition under section 105B.
``(d) An acquisition under this section may be conducted
only in accordance with the certification of the Director of
National Intelligence and the Attorney General, or their oral
instructions if time does not permit the preparation of a
certification, and the minimization procedures adopted by the
Attorney General. The Director of National Intelligence and
the Attorney General shall assess compliance with such
procedures and shall report such assessments to the Permanent
Select Committee on Intelligence of the House of
Representatives and the Select Committee on Intelligence of
the Senate under section 108(a).
``(e) With respect to an authorization of an acquisition
under section 105B, the Director of National Intelligence and
Attorney General may direct a person to--
``(1) immediately provide the Government with all
information, facilities, and assistance necessary to
accomplish the acquisition in such a manner as will protect
the secrecy of the acquisition and produce a minimum of
interference with the services that such person is providing
to the target; and
``(2) maintain under security procedures approved by the
Attorney General and the Director of National Intelligence
any records concerning the acquisition or the aid furnished
that such person wishes to maintain.
``(f) The Government shall compensate, at the prevailing
rate, a person for providing information, facilities, or
assistance pursuant to subsection (e).
``(g) In the case of a failure to comply with a directive
issued pursuant to subsection (e), the Attorney General may
invoke the aid of the court established under section 103(a)
to compel compliance with the directive. The court shall
issue an order requiring the person to comply with the
directive if it finds that the directive was issued in
accordance with subsection (e) and is otherwise lawful.
Failure to obey an order of the court may be punished by the
court as contempt of court. Any process under this section
may be served in any judicial district in which the person
may be found.
``(h)(1)(A) A person receiving a directive issued pursuant
to subsection (e) may challenge the legality of that
directive by filing a petition with the pool established
under section 103(e)(1).
``(B) The presiding judge designated pursuant to section
103(b) shall assign a petition filed under subparagraph (A)
to one of the judges serving in the pool established by
section 103(e)(1). Not later than 48 hours after the
assignment of such petition, the assigned judge shall conduct
an initial review of the directive. If the assigned judge
determines that the petition is frivolous, the assigned judge
shall immediately deny the petition and affirm the directive
or any part of the directive that is the subject of the
petition. If the assigned judge determines the petition is
not frivolous, the assigned judge shall, within 72 hours,
consider the petition in accordance with the procedures
established under section 103(e)(2) and provide a written
statement for the record of the reasons for any determination
under this subsection.
``(2) A judge considering a petition to modify or set aside
a directive may grant such petition only if the judge finds
that such directive does not meet the requirements of this
section or is otherwise unlawful. If the judge does not
modify or set aside the directive, the judge shall
immediately affirm such directive, and order the recipient to
comply with such directive.
``(3) Any directive not explicitly modified or set aside
under this subsection shall remain in full effect.
``(i) The Government or a person receiving a directive
reviewed pursuant to subsection (h) may file a petition with
the Court of Review established under section 103(b) for
review of the decision issued pursuant to subsection (h) not
later than 7 days after the issuance of such decision. Such
court of review shall have jurisdiction to consider such
petitions and shall provide for the record a written
statement of the reasons for its decision. On petition for a
writ of certiorari by the Government or any person receiving
such directive, the record shall be transmitted under seal to
the Supreme Court, which shall have jurisdiction to review
such decision.
``(j) Judicial proceedings under this section shall be
concluded as expeditiously as possible. The record of
proceedings, including petitions filed, orders granted, and
statements of reasons for decision, shall be maintained under
security measures established by the Chief Justice of the
United States, in consultation with the Attorney General and
the Director of National Intelligence.
``(k) All petitions under this section shall be filed under
seal. In any proceedings under this section, the court shall,
upon request of the Government, review ex parte and in camera
any Government submission, or portions of a submission, which
may include classified information.
``(l) Notwithstanding any other law, no cause of action
shall lie in any court against any person for providing any
information, facilities, or assistance in accordance with a
directive under this section.
``(m) A directive made or an order granted under this
section shall be retained for a period of not less than 10
years from the date on which such directive or such order is
made.''.
SEC. 3. SUBMISSION TO COURT REVIEW AND ASSESSMENT OF
PROCEDURES.
The Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.) is amended by inserting after section
105B the following:
``SUBMISSION TO COURT REVIEW OF PROCEDURES
``Sec. 105C. (a) No later than 120 days after the
effective date of this Act, the Attorney General shall submit
to the Court established under section 103(a), the procedures
by which the Government determines that acquisitions
conducted pursuant to section 105B do not constitute
electronic surveillance. The procedures submitted pursuant to
this section shall be updated and submitted to the Court on
an annual basis.
``(b) No later than 180 days after the effective date of
this Act, the court established under section 103(a) shall
assess the Government's determination under section
105B(a)(1) that those procedures are reasonably designed to
ensure that acquisitions conducted pursuant to section 105B
do not constitute electronic surveillance. The court's review
shall be limited to whether the Government's determination is
clearly erroneous.
``(c) If the court concludes that the determination is not
clearly erroneous, it shall enter an order approving the
continued use of such procedures. If the court concludes that
the determination is clearly erroneous, it shall issue an
order directing the Government to submit new procedures
within 30 days or cease any acquisitions under section 105B
that are implicated by the court's order.
``(d) The Government may appeal any order issued under
subsection (c) to the court established under section 103(b).
If such court determines that the order was properly entered,
the court shall immediately provide for the record a written
statement of each reason for its decision, and, on petition
of the United States for a writ of certiorari, the record
shall be transmitted under seal to the Supreme Court of the
United States, which shall have jurisdiction to review such
decision. Any acquisitions affected by the order issued under
subsection (c) of this section may continue during the
pendency of any appeal, the period during which a petition
for writ of certiorari may be pending, and any review by the
Supreme Court of the United States.''.
SEC. 4. REPORTING TO CONGRESS.
On a semi-annual basis the Attorney General shall inform
the Select Committee on Intelligence of the Senate, the
Permanent Select Committee on Intelligence of the House of
Representatives, the Committee on the Judiciary of the
Senate, and the Committee on the Judiciary of the House of
Representatives, concerning acquisitions under this section
during the previous 6-month period. Each report made under
this section shall include--
(1) a description of any incidents of non-compliance with a
directive issued by the Attorney General and the Director of
National Intelligence under section 105B, to include--
(A) incidents of non-compliance by an element of the
Intelligence Community with guidelines or procedures
established for determining that the acquisition of foreign
intelligence authorized by the Attorney General and Director
of National Intelligence concerns persons reasonably to be
outside the United States; and
(B) incidents of noncompliance by a specified person to
whom the Attorney General and Director of National
Intelligence issue a directive under this section; and
(2) the number of certifications and directives issued
during the reporting period.
SEC. 5. TECHNICAL AMENDMENT AND CONFORMING AMENDMENTS.
(a) In General.--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 ``501(f)(1)'' and
inserting ``105B(h) or 501(f)(1)''; and
(2) in paragraph (2), by striking ``501(f)(1)'' and
inserting ``105B(h) or 501(f)(1)''.
(b) Table of Contents.--The table of contents in the first
section of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et seq.) is amended by inserting after the
item relating to section 105 the following:
``105A.Clarification of electronic surveillance of persons outside the
United States.
``105B.Additional procedure for authorizing certain acquisitions
concerning persons located outside the United States.
``105C. Submission to court review of procedures.''.
SEC. 6. EFFECTIVE DATE; TRANSITION PROCEDURES.
(a) Effective Date.--Except as otherwise provided, the
amendments made by this Act
[[Page S10621]]
shall take effect immediately after the date of the enactment
of this Act.
(b) Transition Procedures.--Notwithstanding any other
provision of this Act, any order in effect on the date of
enactment of this Act issued pursuant to the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.) shall remain in effect until the date of expiration of
such order, and, at the request of the applicant, the court
established under section 103 (a) of such Act (50 U.S.C.
1803(a)) shall reauthorize such order as long as the facts
and circumstances continue to justify issuance of such order
under the provisions of the Foreign Intelligence Surveillance
Act of 1978, as in effect on the day before the applicable
effective date of this Act. The Government also may file new
applications, and the court established under section 103(a)
of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1803(a)) shall enter orders granting such applications
pursuant to such Act, as long as the application meets the
requirements set forth under the provisions of such Act as in
effect on the day before the effective date of this Act. At
the request of the applicant, the court established under
section 103(a) of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1803(a)), shall extinguish any extant
authorization to conduct electronic surveillance or physical
search entered pursuant to such Act. Any surveillance
conducted pursuant to an order entered under this subsection
shall be subject to the provisions of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.), as in effect on the day before the effective date of
this Act.
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