[Congressional Record: June 20, 2008 (House)]
[Page H5743-H5774]
FISA AMENDMENTS ACT OF 2008
Mr. CONYERS. Madam Speaker, pursuant to House Resolution 1285, I call
up the bill (H.R. 6304) to amend the Foreign Intelligence Surveillance
Act of 1978 to establish a procedure for authorizing certain
acquisitions of foreign intelligence, and for other purposes, and ask
for its immediate consideration in the House.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 6304
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 certain communications may be
conducted.
Sec. 103. Submittal to Congress of certain court orders under the
Foreign Intelligence Surveillance Act of 1978.
Sec. 104. Applications for court orders.
Sec. 105. Issuance of an order.
Sec. 106. Use of information.
Sec. 107. Amendments for physical searches.
Sec. 108. Amendments for emergency pen registers and trap and trace
devices.
Sec. 109. Foreign Intelligence Surveillance Court.
Sec. 110. Weapons of mass destruction.
TITLE II--PROTECTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS
Sec. 201. Procedures for implementing statutory defenses under the
Foreign Intelligence Surveillance Act of 1978.
Sec. 202. Technical amendments.
TITLE III--REVIEW OF PREVIOUS ACTIONS
Sec. 301. Review of previous actions.
TITLE IV--OTHER PROVISIONS
Sec. 401. Severability.
Sec. 402. Effective date.
Sec. 403. Repeals.
Sec. 404. 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 at the end the following:
``TITLE VII--ADDITIONAL PROCEDURES REGARDING CERTAIN PERSONS OUTSIDE
THE UNITED STATES
``SEC. 701. DEFINITIONS.
``(a) In General.--The terms `agent of a foreign power',
`Attorney General', `contents', `electronic surveillance',
`foreign intelligence information', `foreign power',
`person', `United States', and `United States person' 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 under 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 under 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);
[[Page H5744]]
``(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) Intelligence community.--The term `intelligence
community' has the meaning given the term in section 3(4) of
the National Security Act of 1947 (50 U.S.C. 401a(4)).
``SEC. 702. PROCEDURES FOR TARGETING CERTAIN PERSONS OUTSIDE
THE UNITED STATES OTHER THAN UNITED STATES
PERSONS.
``(a) Authorization.--Notwithstanding any other provision
of law, upon the issuance of an order in accordance with
subsection (i)(3) or a determination under subsection (c)(2),
the Attorney General and the Director of National
Intelligence may authorize jointly, for a period of up to 1
year from the effective date of the authorization, 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;
``(3) may not intentionally target a United States person
reasonably believed to be located outside the United States;
``(4) may 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.--
``(1) In general.--An acquisition authorized under
subsection (a) shall be conducted only in accordance with--
``(A) the targeting and minimization procedures adopted in
accordance with subsections (d) and (e); and
``(B) upon submission of a certification in accordance with
subsection (g), such certification.
``(2) Determination.--A determination under this paragraph
and for purposes of subsection (a) is a determination by the
Attorney General and the Director of National Intelligence
that exigent circumstances exist because, without immediate
implementation of an authorization under subsection (a),
intelligence important to the national security of the United
States may be lost or not timely acquired and time does not
permit the issuance of an order pursuant to subsection (i)(3)
prior to the implementation of such authorization.
``(3) Timing of determination.--The Attorney General and
the Director of National Intelligence may make the
determination under paragraph (2)--
``(A) before the submission of a certification in
accordance with subsection (g); or
``(B) by amending a certification pursuant to subsection
(i)(1)(C) at any time during which judicial review under
subsection (i) of such certification is pending.
``(4) Construction.--Nothing in title I shall be construed
to require an application for a court order under such title
for an acquisition that is targeted in accordance with this
section at a person reasonably believed to be located outside
the United States.
``(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--
``(A) ensure that any acquisition authorized under
subsection (a) is limited to targeting persons reasonably
believed to be located outside the United States; and
``(B) prevent 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 adopted in
accordance with paragraph (1) shall be subject to judicial
review pursuant to subsection (i).
``(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 301(4), as
appropriate, for acquisitions authorized under subsection
(a).
``(2) Judicial review.--The minimization procedures adopted
in accordance with paragraph (1) shall be subject to judicial
review pursuant to subsection (i).
``(f) Guidelines for Compliance With Limitations.--
``(1) Requirement to adopt.--The Attorney General, in
consultation with the Director of National Intelligence,
shall adopt guidelines to ensure--
``(A) compliance with the limitations in subsection (b);
and
``(B) that an application for a court order is filed as
required by this Act.
``(2) Submission of guidelines.--The Attorney General shall
provide the guidelines adopted in accordance with paragraph
(1) to--
``(A) the congressional intelligence committees;
``(B) the Committees on the Judiciary of the Senate and the
House of Representatives; and
``(C) the Foreign Intelligence Surveillance Court.
``(g) Certification.--
``(1) In general.--
``(A) Requirement.--Subject to subparagraph (B), prior to
the implementation of an authorization under subsection (a),
the Attorney General and the Director of National
Intelligence shall provide to the Foreign Intelligence
Surveillance Court a written certification and any supporting
affidavit, under oath and under seal, in accordance with this
subsection.
``(B) Exception.--If the Attorney General and the Director
of National Intelligence make a determination under
subsection (c)(2) and time does not permit the submission of
a certification under this subsection prior to the
implementation of an authorization under subsection (a), the
Attorney General and the Director of National Intelligence
shall submit to the Court a certification for such
authorization as soon as practicable but in no event later
than 7 days after such determination is made.
``(2) Requirements.--A certification made under this
subsection shall--
``(A) attest that--
``(i) there are procedures in place that have been
approved, have been submitted for approval, or will be
submitted with the certification for approval by the Foreign
Intelligence Surveillance Court that are reasonably designed
to--
``(I) ensure that an acquisition authorized under
subsection (a) is limited to targeting persons reasonably
believed to be located outside the United States; and
``(II) prevent 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;
``(ii) the minimization procedures to be used with respect
to such acquisition--
``(I) meet the definition of minimization procedures under
section 101(h) or 301(4), as appropriate; and
``(II) have been approved, have been submitted for
approval, or will be submitted with the certification for
approval by the Foreign Intelligence Surveillance Court;
``(iii) guidelines have been adopted in accordance with
subsection (f) to ensure compliance with the limitations in
subsection (b) and to ensure that an application for a court
order is filed as required by this Act;
``(iv) the procedures and guidelines referred to in clauses
(i), (ii), and (iii) are consistent with the requirements of
the fourth amendment to the Constitution of the United
States;
``(v) a significant purpose of the acquisition is to obtain
foreign intelligence information;
``(vi) the acquisition involves obtaining foreign
intelligence information from or with the assistance of an
electronic communication service provider; and
``(vii) the acquisition complies with the limitations in
subsection (b);
``(B) include the procedures adopted in accordance with
subsections (d) and (e);
``(C) 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 advice
and consent of the Senate; or
``(ii) the head of an element of the intelligence
community;
``(D) include--
``(i) an effective date for the authorization that is at
least 30 days after the submission of the written
certification to the court; or
``(ii) if the acquisition has begun or the effective date
is less than 30 days after the submission of the written
certification to the court, the date the acquisition began or
the effective date for the acquisition; and
``(E) if the Attorney General and the Director of National
Intelligence make a determination under subsection (c)(2),
include a statement that such determination has been made.
``(3) Change in effective date.--The Attorney General and
the Director of National Intelligence may advance or delay
the effective date referred to in paragraph (2)(D) by
submitting an amended certification in accordance with
subsection (i)(1)(C) to the Foreign Intelligence Surveillance
Court for review pursuant to subsection (i).
``(4) Limitation.--A certification made under this
subsection is not required to identify the specific
facilities, places, premises, or property at which an
acquisition authorized under subsection (a) will be directed
or conducted.
``(5) Maintenance of certification.--The Attorney General
or a designee of the Attorney General shall maintain a copy
of a certification made under this subsection.
``(6) Review.--A certification submitted in accordance with
this subsection shall be subject to judicial review pursuant
to subsection (i).
``(h) Directives and Judicial Review of Directives.--
``(1) Authority.--With respect to an acquisition authorized
under subsection (a), the
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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 of
the acquisition; 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
in accordance with a directive issued pursuant to paragraph
(1).
``(3) Release from liability.--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 file a petition to modify or set aside such
directive with the Foreign Intelligence Surveillance Court,
which shall have jurisdiction to review such 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 under section
103(e)(1) not later than 24 hours after the filing of such
petition.
``(C) Standards for review.--A judge considering a petition
filed under subparagraph (A) 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 of a petition filed under subparagraph (A)
not later than 5 days after being assigned such petition. If
the judge determines that such petition does not consist of
claims, defenses, or other legal contentions that are
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 such
petition and affirm the directive or any part of the
directive that is the subject of such petition and order the
recipient to comply with the directive or any part of it.
Upon making a determination under this subparagraph or
promptly thereafter, the judge shall provide a written
statement for the record of the reasons for such
determination.
``(E) Procedures for plenary review.--If a judge determines
that a petition filed under subparagraph (A) requires plenary
review, the judge shall affirm, modify, or set aside the
directive that is the subject of such petition not later than
30 days after being assigned such petition. If the judge does
not set 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 record 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 issued
under this paragraph may be punished by the Court as contempt
of court.
``(5) Enforcement of directives.--
``(A) Order to compel.--If an electronic communication
service provider fails to comply with a directive issued
pursuant to paragraph (1), the Attorney General may file a
petition for an order to compel the electronic communication
service provider to comply with the directive with the
Foreign Intelligence Surveillance Court, which shall have
jurisdiction to review such 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 under section
103(e)(1) not later than 24 hours after the filing of such
petition.
``(C) Procedures for review.--A judge considering a
petition filed under subparagraph (A) shall, not later than
30 days after being assigned such petition, 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. The
judge shall provide a written statement for the record of the
reasons for a determination under this paragraph.
``(D) Contempt of court.--Failure to obey an order issued
under this paragraph may be punished by the Court as contempt
of court.
``(E) Process.--Any process under this paragraph may be
served in any judicial district in which the electronic
communication service provider may be found.
``(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 a decision issued pursuant to paragraph
(4) or (5). The Court of Review shall have jurisdiction to
consider such petition and shall provide a written statement
for the record of the reasons for a decision under this
subparagraph.
``(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 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) 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 a certification submitted in
accordance with subsection (g) and the targeting and
minimization procedures adopted in accordance with
subsections (d) and (e), and amendments to such certification
or such procedures.
``(B) Time period for review.--The Court shall review a
certification submitted in accordance with subsection (g) and
the targeting and minimization procedures adopted in
accordance with subsections (d) and (e) and shall complete
such review and issue an order under paragraph (3) not later
than 30 days after the date on which such certification and
such procedures are submitted.
``(C) Amendments.--The Attorney General and the Director of
National Intelligence may amend a certification submitted in
accordance with subsection (g) or the targeting and
minimization procedures adopted in accordance with
subsections (d) and (e) as necessary at any time, including
if the Court is conducting or has completed review of such
certification or such procedures, and shall submit the
amended certification or amended procedures to the Court not
later than 7 days after amending such certification or such
procedures. The Court shall review any amendment under this
subparagraph under the procedures set forth in this
subsection. The Attorney General and the Director of National
Intelligence may authorize the use of an amended
certification or amended procedures pending the Court's
review of such amended certification or amended procedures.
``(2) Review.--The Court shall review the following:
``(A) Certification.--A certification submitted in
accordance with subsection (g) to determine whether the
certification contains all the required elements.
``(B) Targeting procedures.--The targeting procedures
adopted in accordance with subsection (d) to assess whether
the procedures are reasonably designed to--
``(i) ensure that an acquisition authorized under
subsection (a) is limited to targeting persons reasonably
believed to be located outside the United States; and
``(ii) prevent 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.
``(C) Minimization procedures.--The minimization procedures
adopted in accordance with subsection (e) to assess whether
such procedures meet the definition of minimization
procedures under section 101(h) or section 301(4), as
appropriate.
``(3) Orders.--
``(A) Approval.--If the Court finds that a certification
submitted in accordance with subsection (g) contains all the
required elements and that the targeting and minimization
procedures adopted in accordance with 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
certification and the use, or continued use in the case of an
acquisition authorized pursuant to a determination under
subsection (c)(2), of the procedures for the acquisition.
``(B) Correction of deficiencies.--If the Court finds that
a certification submitted in accordance with subsection (g)
does not contain all the required elements, or that the
procedures adopted in accordance with 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 on which the
Court issues the order; or
``(ii) cease, or not begin, the implementation of the
authorization for which such certification was submitted.
``(C) Requirement for written statement.--In support of an
order under this subsection, the Court shall provide,
simultaneously with the order, for the record a written
statement of the reasons for the order.
``(4) Appeal.--
``(A) Appeal to the court of review.--The Government may
file a petition with the Foreign Intelligence Surveillance
Court of Review for review of an order under this subsection.
The Court of Review shall have jurisdiction to consider such
petition. For any decision under this subparagraph affirming,
[[Page H5746]]
reversing, or modifying an order of the Foreign Intelligence
Surveillance Court, the Court of Review shall provide for the
record a written statement of the reasons for the decision.
``(B) Continuation of acquisition pending rehearing or
appeal.--Any acquisition affected by an order under paragraph
(3)(B) may continue--
``(i) during the pendency of any rehearing of the order by
the Court en banc; and
``(ii) if the Government files a petition for review of 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 a petition for review of an order
under paragraph (3)(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 review.
``(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.
``(5) Schedule.--
``(A) Reauthorization of authorizations in effect.--If the
Attorney General and the Director of National Intelligence
seek to reauthorize or replace an authorization issued under
subsection (a), the Attorney General and the Director of
National Intelligence shall, to the extent practicable,
submit to the Court the certification prepared in accordance
with subsection (g) and the procedures adopted in accordance
with subsections (d) and (e) at least 30 days prior to the
expiration of such authorization.
``(B) Reauthorization of orders, authorizations, and
directives.--If the Attorney General and the Director of
National Intelligence seek to reauthorize or replace an
authorization issued under subsection (a) by filing a
certification pursuant to subparagraph (A), that
authorization, and any directives issued thereunder and any
order related thereto, shall remain in effect,
notwithstanding the expiration provided for in subsection
(a), until the Court issues an order with respect to such
certification under paragraph (3) at which time the
provisions of that paragraph and paragraph (4) shall apply
with respect to such certification.
``(j) Judicial Proceedings.--
``(1) Expedited judicial proceedings.--Judicial proceedings
under this section shall be conducted as expeditiously as
possible.
``(2) Time limits.--A time limit for a judicial decision in
this section shall apply unless the Court, the Court of
Review, or any judge of either the Court or the Court of
Review, by order for reasons stated, extends that time as
necessary for good cause in a manner consistent with national
security.
``(k) Maintenance and Security of Records and
Proceedings.--
``(1) Standards.--The Foreign Intelligence Surveillance
Court shall maintain a record of a proceeding under this
section, including petitions, appeals, orders, and statements
of reasons for a decision, 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.--The Attorney General and the
Director of National Intelligence shall retain a directive or
an order issued under this section for a period of not less
than 10 years from the date on which such directive or such
order is issued.
``(l) 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 adopted in accordance with
subsections (d) and (e) and the guidelines adopted in
accordance with subsection (f) and shall submit each
assessment to--
``(A) the Foreign Intelligence Surveillance Court; and
``(B) consistent with the Rules of the House of
Representatives, the Standing Rules of the Senate, and Senate
Resolution 400 of the 94th Congress or any successor Senate
resolution--
``(i) the congressional intelligence committees; and
``(ii) the Committees on the Judiciary of the House of
Representatives and the Senate.
``(2) Agency assessment.--The Inspector General of the
Department of Justice and the Inspector General of each
element of the intelligence community authorized to acquire
foreign intelligence information under subsection (a), with
respect to the department or element of such Inspector
General--
``(A) are authorized to review compliance with the
targeting and minimization procedures adopted in accordance
with subsections (d) and (e) and the guidelines adopted in
accordance with subsection (f);
``(B) with respect to acquisitions authorized under
subsection (a), shall review the number of disseminated
intelligence reports containing a reference to a United
States-person identity and the number of United States-person
identities subsequently disseminated by the element concerned
in response to requests for identities that were not referred
to by name or title in the original reporting;
``(C) with respect to acquisitions authorized under
subsection (a), shall review the number of targets that were
later determined to be located in the United States and, to
the extent possible, whether communications of such targets
were reviewed; and
``(D) shall provide each such review to--
``(i) the Attorney General;
``(ii) the Director of National Intelligence; and
``(iii) consistent with the Rules of the House of
Representatives, the Standing Rules of the Senate, and Senate
Resolution 400 of the 94th Congress or any successor Senate
resolution--
``(I) the congressional intelligence committees; and
``(II) the Committees on the Judiciary of the House of
Representatives and the Senate.
``(3) Annual review.--
``(A) Requirement to conduct.--The head of each element of
the intelligence community conducting an acquisition
authorized under subsection (a) shall 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 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 communications of such targets were reviewed; and
``(iv) a description of any procedures developed by the
head of such 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, and 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 and, as appropriate, 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) consistent with the Rules of the House of
Representatives, the Standing Rules of the Senate, and Senate
Resolution 400 of the 94th Congress or any successor Senate
resolution--
``(I) the congressional intelligence committees; and
``(II) the Committees on the Judiciary of the House of
Representatives and the Senate.
``SEC. 703. CERTAIN ACQUISITIONS INSIDE THE UNITED STATES
TARGETING 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 review an application and 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 the
acquisition constitutes electronic surveillance 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.--If a United States person targeted under
this subsection is reasonably believed to be located in the
United States during the effective period of an order issued
pursuant to subsection (c), an acquisition targeting such
United States person under this section shall cease unless
the targeted United States person is again reasonably
believed to be located outside the United States while an
order issued pursuant to subsection (c) is in effect. Nothing
in this section shall be construed to limit the authority of
the Government to seek an order or authorization under, or
otherwise engage in any activity that is authorized under,
any other title of this Act.
``(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
[[Page H5747]]
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 proposed minimization procedures that
meet the definition of minimization procedures under section
101(h) or 301(4), as appropriate;
``(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 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 by
the Court 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
301(4), as appropriate; and
``(D) the application that 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 paragraph (1)(B), a
judge having jurisdiction under subsection (a)(1) may
consider past activities of the target and facts and
circumstances relating to current or future activities of the
target. 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 under paragraph
(1)(B), the judge shall enter an order so stating and provide
a written statement for the record of the reasons for the
determination. The Government may appeal an order under this
subparagraph pursuant to subsection (f).
``(C) Review of minimization procedures.--If the judge
determines that the proposed minimization procedures referred
to in paragraph (1)(C) do not meet the definition of
minimization procedures under section 101(h) or 301(4), as
appropriate, the judge shall enter an order so stating and
provide a written statement for the record of the reasons for
the determination. The Government may appeal an order under
this subparagraph pursuant to subsection (f).
``(D) Review of certification.--If the judge determines
that an application pursuant to 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 the
determination. The Government may appeal an order under this
subparagraph 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) a summary of 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) Directives.--An order approving an acquisition under
this subsection shall direct--
``(A) that the minimization procedures referred to in
paragraph (1)(C), as approved or modified by the Court, be
followed;
``(B) if applicable, an electronic communication service
provider to provide to the Government forthwith all
information, facilities, or assistance necessary to
accomplish the acquisition authorized under such order 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 of the acquisition;
``(C) if applicable, 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) if applicable, 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 subsection
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 referred to in paragraph
(1)(C) 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 such 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 section 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 an acquisition under paragraph (1), the Attorney
General shall require that the minimization procedures
referred to in subsection (c)(1)(C) for the issuance of a
judicial order be followed.
``(3) Termination of emergency authorization.--In the
absence of a judicial order
[[Page H5748]]
approving an acquisition under paragraph (1), such
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.--If an application for approval
submitted pursuant to paragraph (1) 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, 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.--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 subsection (c) or
(d), respectively.
``(f) Appeal.--
``(1) Appeal to the foreign intelligence surveillance court
of review.--The Government may file a petition 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 petition 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 a
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.
``(g) Construction.--Except as provided in this section,
nothing in this Act shall be construed to require an
application for a court order for an acquisition that is
targeted in accordance with this section at a United States
person reasonably believed to be located outside the United
States.
``SEC. 704. 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
with respect to such targeted United States person or the
Attorney General has authorized an emergency acquisition
pursuant to subsection (c) or (d), respectively, or any other
provision of this Act.
``(3) Limitations.--
``(A) Moving or misidentified targets.--If a United States
person targeted under this subsection is reasonably believed
to be located in the United States during the effective
period of an order issued pursuant to subsection (c), an
acquisition targeting such United States person under this
section shall cease unless the targeted United States person
is again reasonably believed to be located outside the United
States during the effective period of such order.
``(B) Applicability.--If an acquisition for foreign
intelligence purposes is to be conducted inside the United
States and could be authorized under section 703, the
acquisition may only be conducted if authorized under section
703 or in accordance with another provision of this Act other
than this section.
``(C) Construction.--Nothing in this paragraph shall be
construed to limit the authority of the Government to seek an
order or authorization under, or otherwise engage in any
activity that is authorized under, any other title of this
Act.
``(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 of the Federal officer making the
application;
``(2) the identity, if known, or a description of the
specific United States person who is the target of the
acquisition;
``(3) 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;
``(4) a statement of proposed minimization procedures that
meet the definition of minimization procedures under section
101(h) or 301(4), as appropriate;
``(5) 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;
``(6) 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
``(7) 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.--Upon an application made pursuant to
subsection (b), the Foreign Intelligence Surveillance Court
shall enter an ex parte order as requested or as modified by
the Court 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, with respect to
their dissemination provisions, meet the definition of
minimization procedures under section 101(h) or 301(4), as
appropriate; and
``(D) the application that has been filed contains all
statements and certifications required by subsection (b) and
the certification provided under subsection (b)(5) is not
clearly erroneous on the basis of the information furnished
under subsection (b).
``(2) Probable cause.--In determining whether or not
probable cause exists for purposes of paragraph (1)(B), a
judge having jurisdiction under subsection (a)(1) may
consider past activities of the target and facts and
circumstances relating to current or future activities of the
target. 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 subparagraph 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 301(4), as
appropriate, 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).
``(D) Scope of review of certification.--If the judge
determines that an application under subsection (b) does not
contain all the required elements, or that the certification
provided under subsection (b)(5) 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 referred to in paragraph (1)(C) by
reviewing the circumstances under which information
concerning United States persons was disseminated, provided
that the
[[Page H5749]]
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 of this section, 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 can, with due diligence, be obtained,
and
``(B) the factual basis for the 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 section 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 an emergency acquisition under paragraph (1), the
Attorney General shall require that the minimization
procedures referred to in subsection (c)(1)(C) be followed.
``(3) Termination of emergency authorization.--In the
absence of an order under subsection (c), an emergency
acquisition under paragraph (1) 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.--If an application submitted to
the Court pursuant to paragraph (1) is denied, or in any
other case where the acquisition is terminated and no order
with respect to the target of the acquisition is issued under
subsection (c), 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, 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 a petition 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 petition 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 a
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. JOINT APPLICATIONS AND CONCURRENT AUTHORIZATIONS.
``(a) Joint Applications and Orders.--If an acquisition
targeting a United States person under section 703 or 704 is
proposed to be conducted both inside and outside the United
States, a judge having jurisdiction under section 703(a)(1)
or 704(a)(1) may issue simultaneously, upon the request of
the Government in a joint application complying with the
requirements of sections 703(b) and 704(b), orders under
sections 703(c) and 704(c), as appropriate.
``(b) Concurrent Authorization.--If an order authorizing
electronic surveillance or physical search has been obtained
under section 105 or 304, the Attorney General may authorize,
for the effective period of that order, without an order
under section 703 or 704, the targeting of that United States
person for the purpose of acquiring foreign intelligence
information while such person is reasonably believed to be
located outside the United States.
``SEC. 706. USE OF INFORMATION ACQUIRED UNDER TITLE VII.
``(a) Information Acquired Under Section 702.--Information
acquired from an acquisition conducted under section 702
shall be deemed to be information acquired from an electronic
surveillance pursuant to title I for purposes of section 106,
except for the purposes of subsection (j) of such section.
``(b) 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.
``SEC. 707. 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 and the Committees on the Judiciary
of the Senate and the House of Representatives, consistent
with the Rules of the House of Representatives, the Standing
Rules of the Senate, and Senate Resolution 400 of the 94th
Congress or any successor Senate resolution, concerning the
implementation of this title.
``(b) Content.--Each report under subsection (a) shall
include--
``(1) with respect to section 702--
``(A) any certifications submitted in accordance with
section 702(g) during the reporting period;
``(B) with respect to each determination under section
702(c)(2), the reasons for exercising the authority under
such section;
``(C) any directives issued under section 702(h) during the
reporting period;
``(D) a description of the judicial review during the
reporting period of such certifications and targeting and
minimization procedures adopted in accordance with
subsections (d) and (e) of section 702 and utilized with
respect to an acquisition under such section, including a
copy of an order or pleading in connection with such review
that contains a significant legal interpretation of the
provisions of section 702;
``(E) any actions taken to challenge or enforce a directive
under paragraph (4) or (5) of section 702(h);
``(F) any compliance reviews conducted by the Attorney
General or the Director of National Intelligence of
acquisitions authorized under section 702(a);
``(G) a description of any incidents of noncompliance--
``(i) with a directive issued by the Attorney General and
the Director of National Intelligence under section 702(h),
including incidents of noncompliance by a specified person to
whom the Attorney General and Director of National
Intelligence issued a directive under section 702(h); and
``(ii) by an element of the intelligence community with
procedures and guidelines adopted in accordance with
subsections (d), (e), and (f) of section 702; and
``(H) any procedures implementing section 702;
``(2) with respect to section 703--
``(A) the total number of applications made for orders
under section 703(b);
``(B) the total number of such orders--
``(i) granted;
``(ii) modified; and
``(iii) denied; and
``(C) the total number of emergency acquisitions authorized
by the Attorney General under section 703(d) and the total
number of subsequent orders approving or denying such
acquisitions; and
``(3) 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--
``(i) granted;
``(ii) modified; and
``(iii) 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
applications.
``SEC. 708. SAVINGS PROVISION.
``Nothing in this title shall be construed to limit the
authority of the Government to seek an order or authorization
under, or otherwise engage in any activity that is authorized
under, any other title of this Act.''.
(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. Definitions.
``Sec. 702. Procedures for targeting certain persons outside the United
States other than United States persons.
``Sec. 703. Certain acquisitions inside the United States targeting
United States persons outside the United States.
``Sec. 704. Other acquisitions targeting United States persons outside
the United States.
``Sec. 705. Joint applications and concurrent authorizations.
``Sec. 706. Use of information acquired under title VII.
``Sec. 707. Congressional oversight.
``Sec. 708. Savings provision.''.
(c) Technical and Conforming Amendments.--
(1) Title 18, united states code.--Section
2511(2)(a)(ii)(A) of title 18, United States Code, is amended
by inserting ``or a court order pursuant to section 704 of
the Foreign Intelligence Surveillance Act of 1978'' after
``assistance''.
(2) Foreign intelligence surveillance act of 1978.--Section
601(a)(1) of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1871(a)(1)) is amended--
(A) in subparagraph (C), by striking ``and''; and
(B) by adding at the end the following new subparagraphs:
``(E) acquisitions under section 703; and
``(F) acquisitions under section 704;''.
[[Page H5750]]
SEC. 102. STATEMENT OF EXCLUSIVE MEANS BY WHICH ELECTRONIC
SURVEILLANCE AND INTERCEPTION OF CERTAIN
COMMUNICATIONS MAY BE CONDUCTED.
(a) Statement of Exclusive Means.--Title I of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.) is amended by adding at the end the following new
section:
``statement of exclusive means by which electronic surveillance and
interception of certain communications may be conducted
``Sec. 112. (a) Except as provided in subsection (b), 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 and the interception of
domestic wire, oral, or electronic communications may be
conducted.
``(b) Only an express statutory authorization for
electronic surveillance or the interception of domestic wire,
oral, or electronic communications, other than as an
amendment to this Act or chapters 119, 121, or 206 of title
18, United States Code, shall constitute an additional
exclusive means for the purpose of subsection (a).''.
(b) Offense.--Section 109(a) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1809(a)) is amended by
striking ``authorized by statute'' each place it appears and
inserting ``authorized by this Act, chapter 119, 121, or 206
of title 18, United States Code, or any express statutory
authorization that is an additional exclusive means for
conducting electronic surveillance under section 112.''; and
(c) Conforming Amendments.--
(1) Title 18, united states code.--Section 2511(2)(a) of
title 18, United States Code, is amended by adding at the end
the following:
``(iii) If a certification under subparagraph (ii)(B) for
assistance to obtain foreign intelligence information is
based on statutory authority, the certification shall
identify the specific statutory provision and shall certify
that the statutory requirements have been met.''; and
(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 inserting after the
item relating to section 111, the following new item:
``Sec. 112. Statement of exclusive means by which electronic
surveillance and interception of certain communications
may be conducted.''.
SEC. 103. SUBMITTAL TO CONGRESS OF CERTAIN COURT ORDERS UNDER
THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF
1978.
(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 each 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.--The term
`Foreign Intelligence Surveillance Court' means the court
established under section 103(a).
``(2) Foreign intelligence surveillance court of review.--
The term `Foreign Intelligence Surveillance Court of Review'
means the court established under 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.
(a) In General.--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) reasonably determines that the factual basis for the
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).''.
[[Page H5751]]
(b) Conforming Amendment.--Section 108(a)(2)(C) of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1808(a)(2)(C)) is amended by striking ``105(f)'' and
inserting ``105(e)'';
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);
(B) by redesignating paragraphs (2) through (5) as
paragraphs (1) through (4), respectively; and
(C) in paragraph (2)(B), as redesignated by subparagraph
(B) of this paragraph, by inserting ``or is about to be''
before ``owned''; and
(2) by amending subsection (e) to read as follows:
``(e)(1) Notwithstanding any other provision of this title,
the Attorney General may authorize the emergency employment
of a physical search if the Attorney General--
``(A) reasonably 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) reasonably 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) 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.
``(6) The Attorney General shall assess compliance with the
requirements of paragraph (5).''.
(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 702(h), hold a hearing or
rehearing, en banc, when ordered by a majority of the judges
that constitute such court upon a determination that--
``(i) en banc consideration is necessary to secure or
maintain uniformity of the court's decisions; or
``(ii) the proceeding involves a question of exceptional
importance.
``(B) Any authority granted by this Act to a judge of the
court established under this subsection may be exercised by
the court en banc. When exercising such authority, the court
en banc shall comply with any requirements of this Act on the
exercise of such authority.
``(C) For purposes of this paragraph, the court en banc
shall consist of all judges who constitute the court
established under this subsection.''.
(2) Conforming amendments.--The Foreign Intelligence
Surveillance Act of 1978 is further amended--
(A) in subsection (a) of section 103, as amended by this
subsection, by inserting ``(except when sitting en banc under
paragraph (2))'' after ``no judge designated under this
subsection''; and
(B) in section 302(c) (50 U.S.C. 1822(c)), by inserting
``(except when sitting en banc)'' after ``except that no
judge''.
(c) Stay or Modification During an Appeal.--Section 103 of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1803) is amended--
(1) by redesignating subsection (f) as subsection (g); and
(2) by inserting after subsection (e) the following new
subsection:
``(f)(1) A judge of the court established under subsection
(a), the court established under subsection (b) or a judge of
that court, or the Supreme Court of the United States or a
justice of that court, may, in accordance with the rules of
their respective courts, enter a stay of an order or an order
modifying an order of the court established under subsection
(a) or the court established under subsection (b) entered
under any title of this Act, while the court established
under subsection (a) conducts a rehearing, while an appeal is
pending to the court established under subsection (b), or
while a petition of certiorari is pending in the Supreme
Court of the United States, or during the pendency of any
review by that court.
``(2) The authority described in paragraph (1) shall apply
to an order entered under any provision of this Act.''.
(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:
``(i) Nothing in this Act shall be construed to reduce or
contravene the inherent authority of the court established
under subsection (a) to determine or enforce compliance with
an order or a rule of such court or with a procedure approved
by such court.''.
SEC. 110. WEAPONS OF MASS DESTRUCTION.
(a) Definitions.--
(1) Foreign power.--Subsection (a) of section 101 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1801(a)) is amended--
(A) in paragraph (5), by striking ``persons; or'' and
inserting ``persons;'';
(B) in paragraph (6) by striking the period and inserting
``; or''; and
(C) by adding at the end the following new paragraph:
``(7) an entity not substantially composed of United States
persons that is engaged in the international proliferation of
weapons of mass destruction.''.
(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
[[Page H5752]]
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 adding at the end the following new subsection:
``(p) `Weapon of mass destruction' means--
``(1) any explosive, incendiary, or poison gas device that
is designed, intended, or has the capability to cause a mass
casualty incident;
``(2) any weapon that is designed, intended, or has the
capability to cause death or serious bodily injury to a
significant number of persons 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) that is designed, intended, or has the
capability to cause death, illness, or serious bodily injury
to a significant number of persons; or
``(4) any weapon that is designed, intended, or has the
capability to release radiation or radioactivity causing
death, illness, or serious bodily injury to a significant
number of persons.''.
(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 Amendments.--The Foreign
Intelligence Surveillance Act of 1978 is further amended--
(1) in paragraph (2) of section 105(d) (50 U.S.C. 1805(d)),
as redesignated by section 105(a)(5) of this Act, by striking
``section 101(a) (5) or (6)'' and inserting ``paragraph (5),
(6), or (7) of section 101(a)'';
(2) in section 301(1) (50 U.S.C. 1821(1)), by inserting
``weapon of mass destruction,'' after ``person,''; and
(3) in section 304(d)(2) (50 U.S.C. 1824(d)(2)), by
striking ``section 101(a) (5) or (6)'' and inserting
``paragraph (5), (6), or (7) of section 101(a)''.
TITLE II--PROTECTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS
SEC. 201. 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 at the end 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) Civil action.--The term `civil action' includes a
covered civil action.
``(3) 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.
``(4) Contents.--The term `contents' has the meaning given
that term in section 101(n).
``(5) 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.
``(6) 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).
``(7) Intelligence community.--The term `intelligence
community' has the meaning given the term in section 3(4) of
the National Security Act of 1947 (50 U.S.C. 401a(4)).
``(8) 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
added by section 2 of the Protect America Act of 2007 (Public
Law 110-55), or 702(h).
``(9) 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.--Notwithstanding any
other provision of law, a civil action may not 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 district court of the United States
in which such action is pending that--
``(1) any assistance by that person was provided pursuant
to an order of the court established under section 103(a)
directing such assistance;
``(2) 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;
``(3) any assistance by that person was provided pursuant
to a directive under section 102(a)(4), 105B(e), as added by
section 2 of the Protect America Act of 2007 (Public Law 110-
55), or 702(h) directing such assistance;
``(4) in the case of a covered civil action, the assistance
alleged to have been provided by the electronic communication
service provider was--
``(A) 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
``(B) the subject of a written request or directive, or a
series of written requests or directives, 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
``(5) the person did not provide the alleged assistance.
``(b) Judicial Review.--
``(1) Review of certifications.--A certification under
subsection (a) shall be given effect unless the court finds
that such certification is not supported by substantial
evidence provided to the court pursuant to this section.
``(2) Supplemental materials.--In its review of a
certification under subsection (a), the court may examine the
court order, certification, written request, or directive
described in subsection (a) and any relevant court order,
certification, written request, or directive submitted
pursuant to subsection (d).
``(c) 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) or the supplemental materials provided
pursuant to subsection (b) or (d) would harm the national
security of the United States, the court shall--
``(1) review such certification and the supplemental
materials in camera and ex parte; and
``(2) limit any public disclosure concerning such
certification and the supplemental materials, including any
public order following such in camera and ex parte review, to
a statement as to whether the case is dismissed and a
description of the legal standards that govern the order,
without disclosing the paragraph of subsection (a) that is
the basis for the certification.
``(d) Role of the Parties.--Any plaintiff or defendant in a
civil action may submit any relevant court order,
certification, written request, or directive to the district
court referred to in subsection (a) for review and shall be
permitted to participate in the briefing or argument of any
legal issue in a judicial proceeding conducted pursuant to
this section, but only to the extent that such participation
does not require the disclosure of classified information to
such party. To the extent that classified information is
relevant to the proceeding or would be revealed in the
determination of an issue, the court shall review such
information in camera and ex parte, and shall issue any part
of the court's written order that would reveal classified
information in camera and ex parte and maintain such part
under seal.
``(e) Nondelegation.--The authority and duties of the
Attorney General under this section shall be performed by the
Attorney General (or Acting Attorney General) or the Deputy
Attorney General.
[[Page H5753]]
``(f) Appeal.--The courts of appeals shall have
jurisdiction of appeals from interlocutory orders of the
district courts of the United States granting or denying a
motion to dismiss or for summary judgment under this section.
``(g) 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.
``(h) Relationship to Other Laws.--Nothing in this section
shall be construed to limit any otherwise available immunity,
privilege, or defense under any other provision of law.
``(i) Applicability.--This section shall apply to a civil
action pending on or filed after the date of the enactment of
the FISA Amendments Act of 2008.
``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
commenced after the date of the enactment of the FISA
Amendments Act of 2008.
``SEC. 804. REPORTING.
``(a) Semiannual Report.--Not less frequently than once
every 6 months, the Attorney General shall, in a manner
consistent with national security, the Rules of the House of
Representatives, the Standing Rules of the Senate, and Senate
Resolution 400 of the 94th Congress or any successor Senate
resolution, fully inform 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 subsection (a) shall
include--
``(1) any certifications made under section 802;
``(2) a description of the judicial review of the
certifications made under section 802; and
``(3) any actions taken to enforce the provisions of
section 803.''.
SEC. 202. 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.
``Sec. 804. Reporting.''.
TITLE III--REVIEW OF PREVIOUS ACTIONS
SEC. 301. REVIEW OF PREVIOUS ACTIONS.
(a) Definitions.--In this section:
(1) Appropriate committees of congress.--The term
``appropriate committees of Congress'' means--
(A) the Select Committee on Intelligence and the Committee
on the Judiciary of the Senate; and
(B) the Permanent Select Committee on Intelligence and the
Committee on the Judiciary of the House of Representatives.
(2) Foreign intelligence surveillance court.--The term
``Foreign Intelligence Surveillance Court'' means the court
established under section 103(a) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1803(a)).
(3) President's surveillance program and program.--The
terms ``President's Surveillance Program'' and ``Program''
mean the intelligence activity involving communications that
was authorized by the President during the period beginning
on September 11, 2001, and ending on January 17, 2007,
including the program referred to by the President in a radio
address on December 17, 2005 (commonly known as the Terrorist
Surveillance Program).
(b) Reviews.--
(1) Requirement to conduct.--The Inspectors General of the
Department of Justice, the Office of the Director of National
Intelligence, the National Security Agency, the Department of
Defense, and any other element of the intelligence community
that participated in the President's Surveillance Program,
shall complete a comprehensive review of, with respect to the
oversight authority and responsibility of each such Inspector
General--
(A) all of the facts necessary to describe the
establishment, implementation, product, and use of the
product of the Program;
(B) access to legal reviews of the Program and access to
information about the Program;
(C) communications with, and participation of, individuals
and entities in the private sector related to the Program;
(D) interaction with the Foreign Intelligence Surveillance
Court and transition to court orders related to the Program;
and
(E) any other matters identified by any such Inspector
General that would enable that Inspector General to complete
a review of the Program, with respect to such Department or
element.
(2) Cooperation and coordination.--
(A) Cooperation.--Each Inspector General required to
conduct a review under paragraph (1) shall--
(i) work in conjunction, to the extent practicable, with
any other Inspector General required to conduct such a
review; and
(ii) utilize, to the extent practicable, and not
unnecessarily duplicate or delay, such reviews or audits that
have been completed or are being undertaken by any such
Inspector General or by any other office of the Executive
Branch related to the Program.
(B) Integration of other reviews.--The Counsel of the
Office of Professional Responsibility of the Department of
Justice shall provide the report of any investigation
conducted by such Office on matters relating to the Program,
including any investigation of the process through which
legal reviews of the Program were conducted and the substance
of such reviews, to the Inspector General of the Department
of Justice, who shall integrate the factual findings and
conclusions of such investigation into its review.
(C) Coordination.--The Inspectors General shall designate
one of the Inspectors General required to conduct a review
under paragraph (1) that is appointed by the President, by
and with the advice and consent of the Senate, to coordinate
the conduct of the reviews and the preparation of the
reports.
(c) Reports.--
(1) Preliminary reports.--Not later than 60 days after the
date of the enactment of this Act, the Inspectors General of
the Department of Justice, the Office of the Director of
National Intelligence, the National Security Agency, the
Department of Defense, and any other Inspector General
required to conduct a review under subsection (b)(1), shall
submit to the appropriate committees of Congress an interim
report that describes the planned scope of such review.
(2) Final report.--Not later than 1 year after the date of
the enactment of this Act, the Inspectors General of the
Department of Justice, the Office of the Director of National
Intelligence, the National Security Agency, the Department of
Defense, and any other Inspector General required to conduct
a review under subsection (b)(1), shall submit to the
appropriate committees of Congress, in a manner consistent
with national security, a comprehensive report on such
reviews that includes any recommendations of any such
Inspectors General within the oversight authority and
responsibility of any such Inspector General with respect to
the reviews.
(3) Form.--A report under this subsection shall be
submitted in unclassified form, but may include a classified
annex. The unclassified report shall not disclose the name or
identity of any individual or entity of the private sector
that participated in the Program or with whom there was
communication about the Program, to the extent that
information is classified.
(d) Resources.--
(1) Expedited security clearance.--The Director of National
Intelligence shall ensure that the process for the
investigation and adjudication of an application by an
Inspector General or any appropriate staff of an Inspector
General for a security clearance necessary for the conduct of
the review under subsection (b)(1) is carried out as
expeditiously as possible.
(2) Additional personnel for the inspectors general.--An
Inspector General required to conduct a review under
subsection (b)(1) and submit a report under subsection (c) is
authorized to hire such additional personnel as may be
necessary to carry out such review and prepare such report in
a prompt and timely manner. Personnel authorized to be hired
under this paragraph--
(A) shall perform such duties relating to such a review as
the relevant Inspector General shall direct; and
(B) are in addition to any other personnel authorized by
law.
(3) Transfer of personnel.--The Attorney General, the
Secretary of Defense, the Director of National Intelligence,
the Director of the National Security Agency, or the head of
any other element of the intelligence community may transfer
personnel to the relevant Office of the Inspector General
required to conduct a review under subsection (b)(1) and
submit a report under subsection (c) and, in addition to any
other personnel authorized by law, are authorized to fill any
vacancy caused by such a transfer. Personnel transferred
under this paragraph shall perform such duties relating to
such review as the relevant Inspector General shall direct.
TITLE IV--OTHER PROVISIONS
SEC. 401. SEVERABILITY.
If any provision of this Act, any amendment made by this
Act, or the application thereof to any person or
circumstances is
[[Page H5754]]
held invalid, the validity of the remainder of the Act, of
any such amendments, and of the application of such
provisions to other persons and circumstances shall not be
affected thereby.
SEC. 402. EFFECTIVE DATE.
Except as provided in section 404, the amendments made by
this Act shall take effect on the date of the enactment of
this Act.
SEC. 403. REPEALS.
(a) Repeal of Protect America Act of 2007 Provisions.--
(1) Amendments to fisa.--
(A) In general.--Except as provided in section 404,
sections 105A, 105B, and 105C of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1805a, 1805b, and 1805c)
are repealed.
(B) Technical and conforming amendments.--
(i) 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.
(ii) Conforming amendments.--Except as provided in section
404, section 103(e) of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1803(e)) is amended--
(I) in paragraph (1), by striking ``105B(h) or 501(f)(1)''
and inserting ``501(f)(1) or 702(h)(4)''; and
(II) in paragraph (2), by striking ``105B(h) or 501(f)(1)''
and inserting ``501(f)(1) or 702(h)(4)''.
(2) Reporting requirements.--Except as provided in section
404, section 4 of the Protect America Act of 2007 (Public Law
110-55; 121 Stat. 555) is repealed.
(3) Transition procedures.--Except as provided in section
404, subsection (b) of section 6 of the Protect America Act
of 2007 (Public Law 110-55; 121 Stat. 556) is repealed.
(b) FISA Amendments Act of 2008.--
(1) In general.--Except as provided in section 404,
effective December 31, 2012, title VII of the Foreign
Intelligence Surveillance Act of 1978, as amended by section
101(a), is repealed.
(2) Technical and conforming amendments.--Effective
December 31, 2012--
(A) the table of contents in the first section of such Act
(50 U.S.C. 1801 et seq.) is amended by striking the items
related to title VII;
(B) except as provided in section 404, section 601(a)(1) of
such Act (50 U.S.C. 1871(a)(1)) is amended to read as such
section read on the day before the date of the enactment of
this Act; and
(C) except as provided in section 404, section
2511(2)(a)(ii)(A) of title 18, United States Code, is amended
by striking ``or a court order pursuant to section 704 of the
Foreign Intelligence Surveillance Act of 1978''.
SEC. 404. TRANSITION PROCEDURES.
(a) Transition Procedures for Protect America Act of 2007
Provisions.--
(1) Continued effect of orders, authorizations,
directives.--Except as provided in paragraph (7),
notwithstanding any other provision of law, any order,
authorization, or directive issued or made pursuant to
section 105B of the Foreign Intelligence Surveillance Act of
1978, as added by section 2 of the Protect America Act of
2007 (Public Law 110-55; 121 Stat. 552), shall continue in
effect until the expiration of such order, authorization, or
directive.
(2) Applicability of protect america act of 2007 to
continued orders, authorizations, directives.--
Notwithstanding any other provision of this Act, any
amendment made by this Act, or the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 et seq.)--
(A) subject to paragraph (3), section 105A of such Act, as
added by section 2 of the Protect America Act of 2007 (Public
Law 110-55; 121 Stat. 552), shall continue to apply to any
acquisition conducted pursuant to an order, authorization, or
directive referred to in paragraph (1); and
(B) sections 105B and 105C of the Foreign Intelligence
Surveillance Act of 1978, as added by sections 2 and 3,
respectively, of the Protect America Act of 2007, shall
continue to apply with respect to an order, authorization, or
directive referred to in paragraph (1) until the later of--
(i) the expiration of such order, authorization, or
directive; or
(ii) the date on which final judgment is entered for any
petition or other litigation relating to such order,
authorization, or directive.
(3) Use of information.--Information acquired from an
acquisition conducted pursuant to an order, authorization, or
directive referred to in paragraph (1) 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
such Act (50 U.S.C. 1806), except for purposes of subsection
(j) of such section.
(4) Protection from liability.--Subsection (l) of section
105B of the Foreign Intelligence Surveillance Act of 1978, as
added by section 2 of the Protect America Act of 2007, shall
continue to apply with respect to any directives issued
pursuant to such section 105B.
(5) Jurisdiction of foreign intelligence surveillance
court.--Notwithstanding any other provision of this Act or of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1801 et seq.), section 103(e) of the Foreign Intelligence
Surveillance Act (50 U.S.C. 1803(e)), as amended by section
5(a) of the Protect America Act of 2007 (Public Law 110-55;
121 Stat. 556), shall continue to apply with respect to a
directive issued pursuant to section 105B of the Foreign
Intelligence Surveillance Act of 1978, as added by section 2
of the Protect America Act of 2007, until the later of--
(A) the expiration of all orders, authorizations, or
directives referred to in paragraph (1); or
(B) the date on which final judgment is entered for any
petition or other litigation relating to such order,
authorization, or directive.
(6) Reporting requirements.--
(A) Continued applicability.--Notwithstanding any other
provision of this Act, any amendment made by this Act, the
Protect America Act of 2007 (Public Law 110-55), or the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801
et seq.), section 4 of the Protect America Act of 2007 shall
continue to apply until the date that the certification
described in subparagraph (B) is submitted.
(B) Certification.--The certification described in this
subparagraph is a certification--
(i) made by the Attorney General;
(ii) submitted as part of a semi-annual report required by
section 4 of the Protect America Act of 2007;
(iii) that states that there will be no further
acquisitions carried out under section 105B of the Foreign
Intelligence Surveillance Act of 1978, as added by section 2
of the Protect America Act of 2007, after the date of such
certification; and
(iv) that states that the information required to be
included under such section 4 relating to any acquisition
conducted under such section 105B has been included in a
semi-annual report required by such section 4.
(7) Replacement of orders, authorizations, and
directives.--
(A) In general.--If the Attorney General and the Director
of National Intelligence seek to replace an authorization
issued pursuant to section 105B of the Foreign Intelligence
Surveillance Act of 1978, as added by section 2 of the
Protect America Act of 2007 (Public Law 110-55), with an
authorization under section 702 of the Foreign Intelligence
Surveillance Act of 1978 (as added by section 101(a) of this
Act), the Attorney General and the Director of National
Intelligence shall, to the extent practicable, submit to the
Foreign Intelligence Surveillance Court (as such term is
defined in section 701(b)(2) of such Act (as so added)) a
certification prepared in accordance with subsection (g) of
such section 702 and the procedures adopted in accordance
with subsections (d) and (e) of such section 702 at least 30
days before the expiration of such authorization.
(B) Continuation of existing orders.--If the Attorney
General and the Director of National Intelligence seek to
replace an authorization made pursuant to section 105B of the
Foreign Intelligence Surveillance Act of 1978, as added by
section 2 of the Protect America Act of 2007 (Public Law 110-
55; 121 Stat. 522), by filing a certification in accordance
with subparagraph (A), that authorization, and any directives
issued thereunder and any order related thereto, shall remain
in effect, notwithstanding the expiration provided for in
subsection (a) of such section 105B, until the Foreign
Intelligence Surveillance Court (as such term is defined in
section 701(b)(2) of the Foreign Intelligence Surveillance
Act of 1978 (as so added)) issues an order with respect to
that certification under section 702(i)(3) of such Act (as so
added) at which time the provisions of that section and of
section 702(i)(4) of such Act (as so added) shall apply.
(8) Effective date.--Paragraphs (1) through (7) shall take
effect as if enacted on August 5, 2007.
(b) Transition Procedures for FISA Amendments Act of 2008
Provisions.--
(1) Orders in effect on december 31, 2012.--Notwithstanding
any other provision of this Act, any amendment made by this
Act, or the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.), any order, authorization, or directive
issued or made under title VII of the Foreign Intelligence
Surveillance Act of 1978, as amended by section 101(a), shall
continue in effect until the date of the expiration of such
order, authorization, or directive.
(2) Applicability of title vii of fisa to continued orders,
authorizations, directives.--Notwithstanding any other
provision of this Act, any amendment made by this Act, or the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801
et seq.), with respect to any order, authorization, or
directive referred to in paragraph (1), title VII of such
Act, as amended by section 101(a), shall continue to apply
until the later of--
(A) the expiration of such order, authorization, or
directive; or
(B)
