[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3321 Introduced in House (IH)]







110th CONGRESS
  1st Session
                                H. R. 3321

 To update the Foreign Intelligence Surveillance Act of 1978, and for 
                            other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             August 2, 2007

  Mr. Hoekstra (for himself, Mr. Boehner, Mr. Blunt, and Mr. Putnam) 
 introduced the following bill; which was referred to the Committee on 
the Judiciary, and in addition to the Select Committee on Intelligence 
 (Permanent Select), for a period to be subsequently determined by the 
  Speaker, in each case for consideration of such provisions as fall 
           within the jurisdiction of the committee concerned

_______________________________________________________________________

                                 A BILL


 
 To update the Foreign Intelligence Surveillance Act of 1978, 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. ADDITIONAL PROCEDURE FOR AUTHORIZING CERTAIN ACQUISITIONS OF 
              FOREIGN INTELLIGENCE INFORMATION.

    The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 
et seq.) is amended by inserting after section 105 the following:

   ``clarification of electronic surveillance of persons outside the 
                             united states

    ``Sec. 105A.  Nothing in the definition of electronic surveillance 
under section 101(f) shall be construed to encompass surveillance 
directed at a person reasonably believed to be located outside of the 
United States.

``additional procedure for authorizing certain acquisitions concerning 
               persons located outside the united states

    ``Sec. 105B.  (a) In General.--Notwithstanding any other law, the 
Director of National Intelligence and the Attorney General, may for 
periods of up to one year authorize the acquisition of foreign 
intelligence information concerning persons reasonably believed to be 
outside the United States if the Director of National Intelligence and 
the Attorney General determine, based on the information provided to 
them, that--
            ``(1) there are reasonable procedures in place for 
        determining that the acquisition of foreign intelligence 
        information under this section concerns persons reasonably 
        believed to be located outside the United States, and such 
        procedures will be subject to review of the Court pursuant to 
        section 105C of this act;
            ``(2) the acquisition does not constitute electronic 
        surveillance;
            ``(3) the acquisition involves obtaining the foreign 
        intelligence information from or with the assistance of a 
        communications service provider, custodian, or other person 
        (including any officer, employee, agent, or other specified 
        person of such service provider, custodian, or other person) 
        who has access to communications, either as they are 
        transmitted or while they are stored, or equipment that is 
        being or may be used to transmit or store such communications;
            ``(4) a significant purpose of the acquisition is to obtain 
        foreign intelligence information; and
            ``(5) the minimization procedures to be used with respect 
        to such acquisition activity meet the definition of 
        minimization procedures under section 101(h).
This determination shall be in the form of a written certification, 
under oath, supported as appropriate by affidavit of appropriate 
officials in the national security field occupying positions appointed 
by the President, by and with the consent of the Senate, or the Head of 
any Agency of the Intelligence Community, unless immediate action by 
the Government is required and time does not permit the preparation of 
a certification. 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) Specific Place Not Required.--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) Submission of Certification.--The Attorney General shall 
transmit as soon as practicable under seal to the court established 
under section 103(a) a copy of a certification made under subsection 
(a). Such certification shall be maintained under security measures 
established by the Chief Justice of the United States and the Attorney 
General, in consultation with the Director of National Intelligence, 
and shall remain sealed unless the certification is necessary to 
determine the legality of the acquisition under section 105B.
    ``(d) Minimization Procedures.--An acquisition under this section 
may be conducted only in accordance with the certification of the 
Director of National Intelligence and the Attorney General, or their 
oral instructions if time does not permit the preparation of a 
certification, and the minimization procedures adopted by the Attorney 
General. The Director of National Intelligence and the Attorney General 
shall assess compliance with such procedures and shall report such 
assessments to the Permanent Select Committee on Intelligence of the 
House of Representatives and the Select Committee on Intelligence of 
the Senate under section 108(a).
    ``(e) Directive.--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) Compensation.--The Government shall compensate, at the 
prevailing rate, a person for providing information, facilities, or 
assistance pursuant to subsection (e).
    ``(g) Failure To Comply.--In the case of a failure to comply with a 
directive issued pursuant to subsection (e), the Attorney General may 
invoke the aid of the court established under section 103(a) to compel 
compliance with the directive. The court shall issue an order requiring 
the person to comply with the directive if it finds that the directive 
was issued in accordance with subsection (e) and is otherwise lawful. 
Failure to obey an order of the court may be punished by the court as 
contempt of court. Any process under this section may be served in any 
judicial district in which the person may be found.
    ``(h) Review of Petitions.--(1)(A) A person receiving a directive 
issued pursuant to subsection (e) may challenge the legality of that 
directive by filing a petition with the pool established under section 
103(e)(1).
    ``(B) The presiding judge designated pursuant to section 103(b) 
shall assign a petition filed under subparagraph (A) to one of the 
judges serving in the pool established by section 103(e)(1). Not later 
than 48 hours after the assignment of such petition, the assigned judge 
shall conduct an initial review of the directive. If the assigned judge 
determines that the petition is frivolous, the assigned judge shall 
immediately deny the petition and affirm the directive or any part of 
the directive that is the subject of the petition. If the assigned 
judge determines the petition is not frivolous, the assigned judge 
shall, within 72 hours, consider the petition in accordance with the 
procedures established under section 103(e)(2) and provide a written 
statement for the record of the reasons for any determination under 
this subsection.
    ``(2) A judge considering a petition to modify or set aside a 
directive may grant such petition only if the judge finds that such 
directive does not meet the requirements of this section or is 
otherwise unlawful. If the judge does not modify or set aside the 
directive, the judge shall immediately affirm such directive, and order 
the recipient to comply with such directive.
    ``(3) Any directive not explicitly modified or set aside under this 
subsection shall remain in full effect.
    ``(i) Appeals.--The Government or a person receiving a directive 
reviewed pursuant to subsection (h) may file a petition with the Court 
of Review established under section 103(b) for review of the decision 
issued pursuant to subsection (h) not later than 7 days after the 
issuance of such decision. Such court of review shall have jurisdiction 
to consider such petitions and shall provide for the record a written 
statement of the reasons for its decision. On petition for a writ of 
certiorari by the Government or any person receiving such directive, 
the record shall be transmitted under seal to the Supreme Court, which 
shall have jurisdiction to review such decision.
    ``(j) Proceedings.--Judicial proceedings under this section shall 
be concluded as expeditiously as possible. The record of proceedings, 
including petitions filed, orders granted, and statements of reasons 
for decision, shall be maintained under security measures established 
by the Chief Justice of the United States, in consultation with the 
Attorney General and the Director of National Intelligence.
    ``(k) Sealed 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) Liability.--Notwithstanding any other law, no cause of action 
shall lie in any court against any person for providing any 
information, facilities, or assistance in accordance with a directive 
under this section.
    ``(m) Retention of Directives and Orders.--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. 2. SUBMISSION TO COURT REVIEW AND ASSESSMENT OF PROCEDURES.

    The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 
et seq.) is further amended by inserting after section 105B the 
following:

               ``submission to court review of procedures

    ``Sec. 105C.  (a) No later than 120 days after the date of the 
enactment of this section, 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 date of the enactment of 
this section, 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 courts review shall be limited to whether the 
Government's determination is clearly erroneous.
    ``(c) If the court concludes that the determination is not clearly 
erroneous, it shall enter an order approving the continued use of such 
procedures. If the court concludes that the determination is clearly 
erroneous, it shall issue an order directing the Government to submit 
new procedures within 30 days or cease any acquisitions under section 
105B that are implicated by the court's order.
    ``(d) The Government may appeal any order issued under subsection 
(c) to the court established under section 103(b). If such court 
determines that the order was properly entered, the court shall 
immediately provide for the record a written statement of each reason 
for its decision, and, on petition of the United States for a writ of 
certiorari, the record shall be transmitted under seal to the Supreme 
Court of the United States, which shall have jurisdiction to review 
such decision. Any acquisitions affected by the order issued under 
subsection (c) of this section may continue during the pendency of any 
appeal, the period during which a petition for writ of certiorari may 
be pending, and any review by the Supreme Court of the United 
States.''.

SEC. 3. REPORTING TO CONGRESS.

    The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 
et seq.) is further amended by inserting after section 105C the 
following:

                        ``reporting to congress

    ``Sec. 105D.  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 six-month period. 
Each report made under this section shall include--
            ``(1) a description of the incidents of noncompliance with 
        a directive issued by the Attorney General and the director of 
        national intelligence under section 105B to include--
                    ``(A) incidents of noncompliance 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. 4. TECHNICAL AMENDMENT AND CONFORMING AMENDMENTS.

    (a) Section 103(e) of the Foreign Intelligence Surveillance Act of 
1978 (50 U.S.C. 1801 et seq.) 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.
``105D. Reporting to Congress.''.

SEC. 5. LIABILITY DEFENSE.

    (a) In General.--Notwithstanding any other law, and in addition to 
the immunities, privileges, and defenses provided by any other source 
of law, no action shall lie or be maintained in any court, and no 
penalty, sanction, or other form of remedy or relief shall be imposed 
by any court or any other body, against any person for the alleged 
provision to an element of the intelligence community of any 
information (including records or other information pertaining to a 
customer), facilities, or any other form of assistance, during the 
period of time beginning on September 11, 2001, and ending on the date 
that is the effective date of this Act, in connection with any alleged 
classified communications intelligence activity that the Attorney 
General or a designee of the Attorney General certifies, in a manner 
consistent with the protection of State secrets, is, was, would be, or 
would have been intended to protect the United States from a terrorist 
attack. This section shall apply to all actions, claims, or proceedings 
pending on or after the effective date of this Act.
    (b) Jurisdiction.--Any action or claim described in subsection (a) 
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 
pursuant to section 1441 of title 28, United States Code.
    (c) Definitions.--In this section:
            (1) 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)).
            (2) Person.--The term ``person'' has the meaning given the 
        term in section 2510(6) of title 18, United States Code.

SEC. 6. EFFECTIVE DATE; TRANSITION PROCEDURES.

    (a) Except as otherwise provided, the amendments made by this Act 
shall take effect immediately after the date of the enactment of this 
Act.
    (b) Notwithstanding any other provision of this Act, any order in 
effect on the date of enactment of this Act issued pursuant to the 
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) 
shall remain in effect until the date of expiration of such order, and, 
at the request of the applicant, the court established under section 
103 (a) of such Act (50 U.S.C. 1803(a)) shall reauthorize such order as 
long as the facts and circumstances continue to justify issuance of 
such order under the provisions of the Foreign Intelligence 
Surveillance Act of 1978, as in effect on the day before the applicable 
effective date of this Act. The Government also may file new 
applications, and the court established under section 103(a) of the 
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a)) shall 
enter orders granting such applications pursuant to such Act, as long 
as the application meets the requirements set forth under the 
provisions of such Act as in effect on the day before the effective 
date of this Act. At the request of the applicant, the court 
established under section 103(a) of the Foreign Intelligence 
Surveillance Act of 1978 (50 U.S.C. 1803(a)), shall extinguish any 
extant authorization to conduct electronic surveillance or physical 
search entered pursuant to such Act. Any surveillance conducted 
pursuant to an order entered under this subsection shall be subject to 
the provisions of the Foreign Intelligence Surveillance Act of 1978 (50 
U.S.C. 1801 et seq.), as in effect on the day before the effective date 
of this Act.
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