[110th Congress Public Law 55]
[From the U.S. Government Printing Office]
[DOCID: f:publ055.110]
[[Page 551]]
PROTECT AMERICA ACT OF 2007
[[Page 121 STAT. 552]]
Public Law 110-55
110th Congress
An Act
To amend the Foreign Intelligence Surveillance Act of 1978 to provide
additional procedures for authorizing certain acquisitions of foreign
intelligence information and for other purposes. <<NOTE: Aug. 5,
2007 - [S. 1927]>>
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress <<NOTE: Protect America Act of
2007. 50 USC 1801 note.>> assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Protect America Act of 2007''.
SEC. 2. ADDITIONAL PROCEDURE FOR AUTHORIZING CERTAIN ACQUISITIONS
OF FOREIGN INTELLIGENCE INFORMATION.
The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.) is amended by inserting after section 105 the following:
``CLARIFICATION OF ELECTRONIC SURVEILLANCE OF PERSONS OUTSIDE THE UNITED
STATES
``Sec. 105A. <<NOTE: 50 USC 1805a.>> Nothing in the definition of
electronic surveillance under section 101(f) shall be construed to
encompass surveillance directed at a person reasonably believed to be
located outside of the United States.
``ADDITIONAL PROCEDURE FOR AUTHORIZING CERTAIN ACQUISITIONS CONCERNING
PERSONS LOCATED OUTSIDE THE UNITED STATES
``Sec. 105B. <<NOTE: 50 USC 1805b.>> (a) Notwithstanding any other
law, the Director of National Intelligence and the Attorney General, may
for periods of up to one year authorize the acquisition of foreign
intelligence information concerning persons reasonably believed to be
outside the United States if the Director of National Intelligence and
the Attorney General determine, based on the information provided to
them, that--
``(1) there are reasonable procedures in place for
determining that the acquisition of foreign intelligence
information under this section concerns persons reasonably
believed to be located outside the United States, and such
procedures will be subject to review of the Court pursuant to
section 105C of this Act;
``(2) the acquisition does not constitute electronic
surveillance;
``(3) the acquisition involves obtaining the foreign
intelligence information from or with the assistance of a
communications service provider, custodian, or other person
(including any officer, employee, agent, or other specified
person of such service provider, custodian, or other person) who
has access
[[Page 121 STAT. 553]]
to communications, either as they are transmitted or while they
are stored, or equipment that is being or may be used to
transmit or store such communications;
``(4) a significant purpose of the acquisition is to obtain
foreign intelligence information; and
``(5) the minimization procedures to be used with respect to
such acquisition activity meet the definition of minimization
procedures under section 101(h).
``This <<NOTE: Certification.>> determination shall be in the form
of a written certification, under oath, supported as appropriate by
affidavit of appropriate officials in the national security field
occupying positions appointed by the President, by and with the consent
of the Senate, or the Head of any Agency of the Intelligence Community,
unless immediate action by the Government is required and time does not
permit the preparation of a certification. In such a case, the
determination of the Director of National Intelligence and the Attorney
General shall be reduced to a certification as soon as possible but in
no event more than 72 hours after the determination is made.
``(b) A certification under subsection (a) is not required to
identify the specific facilities, places, premises, or property at which
the acquisition of foreign intelligence information will be directed.
``(c) The <<NOTE: Records.>> Attorney General shall transmit as
soon as practicable under seal to the court established under section
103(a) a copy of a certification made under subsection (a). Such
certification shall be maintained under security measures established by
the Chief Justice of the United States and the Attorney General, in
consultation with the Director of National Intelligence, and shall
remain sealed unless the certification is necessary to determine the
legality of the acquisition under section 105B.
``(d) An acquisition under this section may be conducted only in
accordance with the certification of the Director of National
Intelligence and the Attorney General, or their oral instructions if
time does not permit the preparation of a certification, and the
minimization procedures adopted by the Attorney
General. <<NOTE: Reports.>> The Director of National Intelligence and
the Attorney General shall assess compliance with such procedures and
shall report such assessments to the Permanent Select Committee on
Intelligence of the House of Representatives and the Select Committee on
Intelligence of the Senate under section 108(a).
``(e) With respect to an authorization of an acquisition under
section 105B, the Director of National Intelligence and Attorney General
may direct a person to--
``(1) immediately provide the Government with all
information, facilities, and assistance necessary to accomplish
the acquisition in such a manner as will protect the secrecy of
the acquisition and produce a minimum of interference with the
services that such person is providing to the target; and
``(2) maintain under security procedures approved by the
Attorney General and the Director of National Intelligence any
records concerning the acquisition or the aid furnished that
such person wishes to maintain.
``(f) The Government shall compensate, at the prevailing rate, a
person for providing information, facilities, or assistance pursuant to
subsection (e).
``(g) In the case of a failure to comply with a directive issued
pursuant to subsection (e), the Attorney General may invoke the
[[Page 121 STAT. 554]]
aid of the court established under section 103(a) to compel compliance
with the directive. <<NOTE: Courts.>> The court shall issue an order
requiring the person to comply with the directive if it finds that the
directive was issued in accordance with subsection (e) and is otherwise
lawful. Failure to obey an order of the court may be punished by the
court as contempt of court. Any process under this section may be served
in any judicial district in which the person may be found.
``(h)(1)(A) A person receiving a directive issued pursuant to
subsection (e) may challenge the legality of that directive by filing a
petition with the pool established under section 103(e)(1).
``(B) <<NOTE: Petitions.>> The presiding judge designated pursuant
to section 103(b) shall assign a petition filed under subparagraph (A)
to one of the judges serving in the pool established by section
103(e)(1). Not <<NOTE: Deadline.>> later than 48 hours after the
assignment of such petition, the assigned judge shall conduct an initial
review of the directive. If the assigned judge determines that the
petition is frivolous, the assigned judge shall immediately deny the
petition and affirm the directive or any part of the directive that is
the subject of the petition. <<NOTE: Deadline. Records.>> If the
assigned judge determines the petition is not frivolous, the assigned
judge shall, within 72 hours, consider the petition in accordance with
the procedures established under section 103(e)(2) and provide a written
statement for the record of the reasons for any determination under this
subsection.
``(2) A judge considering a petition to modify or set aside a
directive may grant such petition only if the judge finds that such
directive does not meet the requirements of this section or is otherwise
unlawful. If the judge does not modify or set aside the directive, the
judge shall immediately affirm such directive, and order the recipient
to comply with such directive.
``(3) Any directive not explicitly modified or set aside under this
subsection shall remain in full effect.
``(i) <<NOTE: Deadline.>> The Government or a person receiving a
directive reviewed pursuant to subsection (h) may file a petition with
the Court of Review established under section 103(b) for review of the
decision issued pursuant to subsection (h) not later than 7 days after
the issuance of such decision. <<NOTE: Records.>> Such court of review
shall have jurisdiction to consider such petitions and shall provide for
the record a written statement of the reasons for its decision. On
petition for a writ of certiorari by the Government or any person
receiving such directive, the record shall be transmitted under seal to
the Supreme Court, which shall have jurisdiction to review such
decision.
``(j) Judicial proceedings under this section shall be concluded as
expeditiously as possible. <<NOTE: Records.>> The record of proceedings,
including petitions filed, orders granted, and statements of reasons for
decision, shall be maintained under security measures established by the
Chief Justice of the United States, in consultation with the Attorney
General and the Director of National Intelligence.
``(k) <<NOTE: Petitions.>> All petitions under this section shall be
filed under seal. In any proceedings under this section, the court
shall, upon request of the Government, review ex parte and in camera any
Government submission, or portions of a submission, which may include
classified information.
``(l) Notwithstanding any other law, no cause of action shall lie in
any court against any person for providing any information,
[[Page 121 STAT. 555]]
facilities, or assistance in accordance with a directive under this
section.
``(m) <<NOTE: Records.>> A directive made or an order granted under
this section shall be retained for a period of not less than 10 years
from the date on which such directive or such order is made.''.
SEC. 3. SUBMISSION TO COURT REVIEW AND ASSESSMENT OF PROCEDURES.
The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.) is amended by inserting after section 105B the following:
``SUBMISSION TO COURT REVIEW OF PROCEDURES
``Sec. 105C. <<NOTE: Deadlines. 50 USC 1805c.>> (a) No later than
120 days after the effective date of this Act, the Attorney General
shall submit to the Court established under section 103(a), the
procedures by which the Government determines that acquisitions
conducted pursuant to section 105B do not constitute electronic
surveillance. The procedures submitted pursuant to this section shall be
updated and submitted to the Court on an annual basis.
``(b) No later than 180 days after the effective date of this Act,
the court established under section 103(a) shall assess the Government's
determination under section 105B(a)(1) that those procedures are
reasonably designed to ensure that acquisitions conducted pursuant to
section 105B do not constitute electronic surveillance. The court's
review shall be limited to whether the Government's determination is
clearly erroneous.
``(c) If the court concludes that the determination is not clearly
erroneous, it shall enter an order approving the continued use of such
procedures. If the court concludes that the determination is clearly
erroneous, it shall issue an order directing the Government to submit
new procedures within 30 days or cease any acquisitions under section
105B that are implicated by the court's order.
``(d) The Government may appeal any order issued under subsection
(c) to the court established under section 103(b). <<NOTE: Records.>> If
such court determines that the order was properly entered, the court
shall immediately provide for the record a written statement of each
reason for its decision, and, on petition of the United States for a
writ of certiorari, the record shall be transmitted under seal to the
Supreme Court of the United States, which shall have jurisdiction to
review such decision. Any acquisitions affected by the order issued
under subsection (c) of this section may continue during the pendency of
any appeal, the period during which a petition for writ of certiorari
may be pending, and any review by the Supreme Court of the United
States.''.
SEC. 4. REPORTING TO CONGRESS.
On a semi-annual basis the Attorney General shall inform the Select
Committee on Intelligence of the Senate, the Permanent Select Committee
on Intelligence of the House of Representatives, the Committee on the
Judiciary of the Senate, and the Committee on the Judiciary of the House
of Representatives, concerning acquisitions under this section during
the previous 6-month period. Each report made under this section shall
include--
(1) a description of any incidents of non-compliance with a
directive issued by the Attorney General and the Director of
National Intelligence under section 105B, to include--
[[Page 121 STAT. 556]]
(A) incidents of non-compliance by an element of the
Intelligence Community with guidelines or procedures
established for determining that the acquisition of
foreign intelligence authorized by the Attorney General
and Director of National Intelligence concerns persons
reasonably to be outside the United States; and
(B) incidents of noncompliance by a specified person
to whom the Attorney General and Director of National
Intelligence issue a directive under this section; and
(2) the number of certifications and directives issued
during the reporting period.
SEC. 5. TECHNICAL AMENDMENT AND CONFORMING AMENDMENTS.
(a) In General.--Section 103(e) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1803(e)) is amended--
(1) in paragraph (1), by striking ``501(f)(1)'' and
inserting ``105B(h) or 501(f)(1)''; and
(2) in paragraph (2), by striking ``501(f)(1)'' and
inserting ``105B(h) or 501(f)(1)''.
(b) Table of Contents.--The table of contents in the first section
of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.) is amended by inserting after the item relating to section 105 the
following:
``105A. Clarification of electronic surveillance of persons outside the
United States.
``105B. Additional procedure for authorizing certain acquisitions
concerning persons located outside the United States.
``105C. Submission to court review of procedures.''.
SEC. 6. <<NOTE: 50 USC 1803 note.>> EFFECTIVE DATE; TRANSITION
PROCEDURES.
(a) Effective Date.--Except as otherwise provided, the amendments
made by this Act shall take effect immediately after the date of the
enactment of this Act.
(b) Transition Procedures.--Notwithstanding any other provision of
this Act, any order in effect on the date of enactment of this Act
issued pursuant to the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.) shall remain in effect until the date of expiration
of such order, and, at the request of the applicant, the court
established under section 103(a) of such Act (50 U.S.C. 1803(a)) shall
reauthorize such order as long as the facts and circumstances continue
to justify issuance of such order under the provisions of the Foreign
Intelligence Surveillance Act of 1978, as in effect on the day before
the applicable effective date of this Act. The Government also may file
new applications, and the court established under section 103(a) of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a)) shall
enter orders granting such applications pursuant to such Act, as long as
the application meets the requirements set forth under the provisions of
such Act as in effect on the day before the effective date of this Act.
At the request of the applicant, the court established under section
103(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1803(a)), shall extinguish any extant authorization to conduct
electronic surveillance or physical search entered pursuant to such Act.
Any surveillance conducted pursuant to an order entered under this
subsection shall be subject to the provisions of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), as in
effect on the day before the effective date of this Act.
[[Page 121 STAT. 557]]
(c) Sunset.--Except as provided in subsection (d), sections 2, 3, 4,
and 5 of this Act, and the amendments made by this Act, shall cease to
have effect 180 days after the date of the enactment of this Act.
(d) Authorizations in Effect.--Authorizations for the acquisition of
foreign intelligence information pursuant to the amendments made by this
Act, and directives issued pursuant to such authorizations, shall remain
in effect until their expiration. Such acquisitions shall be governed by
the applicable provisions of such amendments and shall not be deemed to
constitute electronic surveillance as that term is defined in section
101(f) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1801(f)).
Approved August 5, 2007.
LEGISLATIVE HISTORY--S. 1927:
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CONGRESSIONAL RECORD, Vol. 153 (2007):
Aug. 3, considered and passed Senate.
Aug. 4, considered and passed House.
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