[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6304 Placed on Calendar Senate (PCS)]
Calendar No. 827
110th CONGRESS
2d Session
H. R. 6304
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
June 20, 2008
Ordered received; read twice and placed on the calendar
_______________________________________________________________________
AN ACT
To amend the Foreign Intelligence Surveillance Act of 1978 to establish
a procedure for authorizing certain acquisitions of foreign
intelligence, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Foreign
Intelligence Surveillance Act of 1978 Amendments Act of 2008'' or the
``FISA Amendments Act of 2008''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
TITLE I--FOREIGN INTELLIGENCE SURVEILLANCE
Sec. 101. Additional procedures regarding certain persons outside the
United States.
Sec. 102. Statement of exclusive means by which electronic surveillance
and interception of 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);
``(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 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,
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 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 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 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;''.
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).''.
(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 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.
``(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 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) the date on which final judgment is entered for
any petition or other litigation relating to such
order, authorization, or directive.
(3) Challenge of directives; protection from liability; use
of information.--Notwithstanding any other provision of this
Act or of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.)--
(A) section 103(e) of such Act, as amended by
section 403(a)(1)(B)(ii), shall continue to apply with
respect to any directive issued pursuant to section
702(h) of such Act, as added by section 101(a);
(B) section 702(h)(3) of such Act (as so added)
shall continue to apply with respect to any directive
issued pursuant to section 702(h) of such Act (as so
added);
(C) section 703(e) of such Act (as so added) shall
continue to apply with respect to an order or request
for emergency assistance under that section;
(D) section 706 of such Act (as so added) shall
continue to apply to an acquisition conducted under
section 702 or 703 of such Act (as so added); and
(E) section 2511(2)(a)(ii)(A) of title 18, United
States Code, as amended by section 101(c)(1), shall
continue to apply to an order issued pursuant to
section 704 of the Foreign Intelligence Surveillance
Act of 1978, as added by section 101(a).
(4) Reporting requirements.--
(A) Continued applicability.--Notwithstanding any
other provision of this Act or of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801
et seq.), section 601(a) of such Act (50 U.S.C.
1871(a)), as amended by section 101(c)(2), and sections
702(l) and 707 of such Act, as added by section 101(a),
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 to the Select Committee on
Intelligence of the Senate, the Permanent
Select Committee on Intelligence of the House
of Representatives, and the Committees on the
Judiciary of the Senate and the House of
Representatives;
(iii) that states that there will be no
further acquisitions carried out under title
VII of the Foreign Intelligence Surveillance
Act of 1978, as amended by section 101(a),
after the date of such certification; and
(iv) that states that the information
required to be included in a review,
assessment, or report under section 601 of such
Act, as amended by section 101(c), or section
702(l) or 707 of such Act, as added by section
101(a), relating to any acquisition conducted
under title VII of such Act, as amended by
section 101(a), has been included in a review,
assessment, or report under such section 601,
702(l), or 707.
(5) Transition procedures concerning the targeting of
united states persons overseas.--Any authorization in effect on
the date of enactment of this Act under section 2.5 of
Executive Order 12333 to intentionally target a United States
person reasonably believed to be located outside the United
States shall continue in effect, and shall constitute a
sufficient basis for conducting such an acquisition targeting a
United States person located outside the United States until
the earlier of--
(A) the date that authorization expires; or
(B) the date that is 90 days after the date of the
enactment of this Act.
Passed the House of Representatives June 20, 2008.
Attest:
LORRAINE C. MILLER,
Clerk.
Calendar No. 827
110th CONGRESS
2d Session
H. R. 6304
_______________________________________________________________________
AN ACT
To amend the Foreign Intelligence Surveillance Act of 1978 to establish
a procedure for authorizing certain acquisitions of foreign
intelligence, and for other purposes.
_______________________________________________________________________
June 20, 2008
Ordered received; read twice and placed on the calendar