[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3773 Engrossed Amendment Senate (EAS)]

  
  
  
  
  
  
  
  
  
  

                  In the Senate of the United States,

                                                     February 12, 2008.
    Resolved, That the bill from the House of Representatives (H.R. 
3773) entitled ``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.'', do 
pass with the following

                               AMENDMENT:

            Strike out all after the enacting clause and insert:

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 domestic 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.
Sec. 111. Technical and conforming amendments.

  TITLE II--PROTECTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS

Sec. 201. Definitions.
Sec. 202. Limitations on civil actions for electronic communication 
                            service providers.
Sec. 203. Procedures for implementing statutory defenses under the 
                            Foreign Intelligence Surveillance Act of 
                            1978.
Sec. 204. Preemption of State investigations.
Sec. 205. Technical amendments.

                      TITLE III--OTHER PROVISIONS

Sec. 301. Severability.
Sec. 302. Effective date; repeal; 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 after title VI the following new title:

 ``TITLE VII--ADDITIONAL PROCEDURES REGARDING CERTAIN PERSONS OUTSIDE 
                           THE UNITED STATES

``SEC. 701. LIMITATION ON DEFINITION OF ELECTRONIC SURVEILLANCE.

    ``Nothing in the definition of electronic surveillance under 
section 101(f) shall be construed to encompass surveillance that is 
targeted in accordance with this title at a person reasonably believed 
to be located outside the United States.

``SEC. 702. DEFINITIONS.

    ``(a) In General.--The terms `agent of a foreign power', `Attorney 
General', `contents', `electronic surveillance', `foreign intelligence 
information', `foreign power', `minimization procedures', `person', 
`United States', and `United States person' shall 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 by 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 by 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) Element of the intelligence community.--The term 
        `element of the intelligence community' means an element of the 
        intelligence community specified in or designated under section 
        3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)).

``SEC. 703. PROCEDURES FOR TARGETING CERTAIN PERSONS OUTSIDE THE UNITED 
              STATES OTHER THAN UNITED STATES PERSONS.

    ``(a) Authorization.--Notwithstanding any other law, the Attorney 
General and the Director of National Intelligence may authorize 
jointly, for periods of up to 1 year, 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, except in 
        accordance with title I or title III;
            ``(3) may not intentionally target a United States person 
        reasonably believed to be located outside the United States, 
        except in accordance with sections 704, 705, or 706;
            ``(4) shall 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.--An acquisition authorized under 
subsection (a) may be conducted only in accordance with--
            ``(1) a certification made by the Attorney General and the 
        Director of National Intelligence pursuant to subsection (f); 
        and
            ``(2) the targeting and minimization procedures required 
        pursuant to subsections (d) and (e).
    ``(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 
        ensure that any acquisition authorized under subsection (a) is 
        limited to targeting persons reasonably believed to be located 
        outside the United States and does not result in 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 referred to in 
        paragraph (1) shall be subject to judicial review pursuant to 
        subsection (h).
    ``(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 section 301(4) 
        for acquisitions authorized under subsection (a).
            ``(2) Judicial review.--The minimization procedures 
        required by this subsection shall be subject to judicial review 
        pursuant to subsection (h).
    ``(f) Certification.--
            ``(1) In general.--
                    ``(A) Requirement.--Subject to subparagraph (B), 
                prior to the initiation of an acquisition authorized 
                under subsection (a), the Attorney General and the 
                Director of National Intelligence shall provide, under 
                oath, a written certification, as described in this 
                subsection.
                    ``(B) Exception.--If the Attorney General and the 
                Director of National Intelligence determine that 
                immediate action by the Government is required and time 
                does not permit the preparation of a certification 
                under this subsection prior to the initiation of an 
                acquisition, the Attorney General and the Director of 
                National Intelligence shall prepare such certification, 
                including such determination, as soon as possible but 
                in no event more than 7 days after such determination 
                is made.
            ``(2) Requirements.--A certification made under this 
        subsection shall--
                    ``(A) attest that--
                            ``(i) there are reasonable procedures in 
                        place for determining that the acquisition 
                        authorized under subsection (a) is targeted at 
                        persons reasonably believed to be located 
                        outside the United States and that such 
                        procedures have been approved by, or will be 
                        submitted in not more than 5 days for approval 
                        by, the Foreign Intelligence Surveillance Court 
                        pursuant to subsection (h);
                            ``(ii) there are reasonable procedures in 
                        place for determining that the acquisition 
                        authorized under subsection (a) does not result 
                        in 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, and that such procedures have been 
                        approved by, or will be submitted in not more 
                        than 5 days for approval by, the Foreign 
                        Intelligence Surveillance Court pursuant to 
                        subsection (h);
                            ``(iii) the procedures referred to in 
                        clauses (i) and (ii) are consistent with the 
                        requirements of the fourth amendment to the 
                        Constitution of the United States and do not 
                        permit the intentional targeting of any person 
                        who is known at the time of acquisition to be 
                        located in the United States or the intentional 
                        acquisition of any communication as to which 
                        the sender and all intended recipients are 
                        known at the time of acquisition to be located 
                        in the United States;
                            ``(iv) a significant purpose of the 
                        acquisition is to obtain foreign intelligence 
                        information;
                            ``(v) the minimization procedures to be 
                        used with respect to such acquisition--
                                    ``(I) meet the definition of 
                                minimization procedures under section 
                                101(h) or section 301(4); and
                                    ``(II) have been approved by, or 
                                will be submitted in not more than 5 
                                days for approval by, the Foreign 
                                Intelligence Surveillance Court 
                                pursuant to subsection (h);
                            ``(vi) the acquisition involves obtaining 
                        the foreign intelligence information from or 
                        with the assistance of an electronic 
                        communication service provider; and
                            ``(vii) the acquisition does not constitute 
                        electronic surveillance, as limited by section 
                        701; and
                    ``(B) 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 consent of the Senate; or
                            ``(ii) the head of any element of the 
                        intelligence community.
            ``(3) Limitation.--A certification made under this 
        subsection is not required to identify the specific facilities, 
        places, premises, or property at which the acquisition 
        authorized under subsection (a) will be directed or conducted.
            ``(4) Submission to the court.--The Attorney General shall 
        transmit a copy of a certification made under this subsection, 
        and any supporting affidavit, under seal to the Foreign 
        Intelligence Surveillance Court as soon as possible, but in no 
        event more than 5 days after such certification is made. Such 
        certification shall be maintained under security measures 
        adopted by the Chief Justice of the United States and the 
        Attorney General, in consultation with the Director of National 
        Intelligence.
            ``(5) Review.--The certification required by this 
        subsection shall be subject to judicial review pursuant to 
        subsection (h).
    ``(g) 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; 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 
        pursuant to paragraph (1).
            ``(3) Release from liability.--Notwithstanding any other 
        law, 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 challenge the 
                directive by filing a petition with the Foreign 
                Intelligence Surveillance Court, which shall have 
                jurisdiction to review such a petition.
                    ``(B) Assignment.--The presiding judge of the Court 
                shall assign the petition filed under subparagraph (A) 
                to 1 of the judges serving in the pool established by 
                section 103(e)(1) not later than 24 hours after the 
                filing of the petition.
                    ``(C) Standards for review.--A judge considering a 
                petition to modify or set aside a directive 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 not later than 5 days after 
                being assigned a petition described in subparagraph 
                (C). If the judge determines that the petition consists 
                of claims, defenses, or other legal contentions that 
                are not 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 the petition and affirm the 
                directive or any part of the directive that is the 
                subject of the petition and order the recipient to 
                comply with the directive or any part of it. Upon 
                making such a determination or promptly thereafter, the 
                judge shall provide a written statement for the record 
                of the reasons for a determination under this 
                subparagraph.
                    ``(E) Procedures for plenary review.--If a judge 
                determines that a petition described in subparagraph 
                (C) requires plenary review, the judge shall affirm, 
                modify, or set aside the directive that is the subject 
                of that petition not later than 30 days after being 
                assigned the petition, unless the judge, by order for 
                reasons stated, extends that time as necessary to 
                comport with the due process clause of the fifth 
                amendment to the Constitution of the United States. 
                Unless the judge sets 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 records 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 
                of the Court issued under this paragraph may be 
                punished by the Court as contempt of court.
            ``(5) Enforcement of directives.--
                    ``(A) Order to compel.--In the case of a failure to 
                comply with a directive issued pursuant to paragraph 
                (1), the Attorney General may file a petition for an 
                order to compel compliance with the directive with the 
                Foreign Intelligence Surveillance Court, which shall 
                have jurisdiction to review such a 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 by 
                section 103(e)(1) not later than 24 hours after the 
                filing of the petition.
                    ``(C) Standards for review.--A judge considering a 
                petition filed under subparagraph (A) shall 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.
                    ``(D) Procedures for review.--The judge shall 
                render a determination not later than 30 days after 
                being assigned a petition filed under subparagraph (A), 
                unless the judge, by order for reasons stated, extends 
                that time if necessary to comport with the due process 
                clause of the fifth amendment to the Constitution of 
                the United States. The judge shall provide a written 
                statement for the record of the reasons for a 
                determination under this paragraph.
                    ``(E) Contempt of court.--Failure to obey an order 
                of the Court issued under this paragraph may be 
                punished by the Court as contempt of court.
                    ``(F) 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 
                the decision issued pursuant to paragraph (4) or (5). 
                The Court of Review shall have jurisdiction to consider 
                such a petition and shall provide a written statement 
                for the record of the reasons for a decision under this 
                paragraph.
                    ``(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 the 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.
    ``(h) 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 
                any certification required by subsection (c) and the 
                targeting and minimization procedures adopted pursuant 
                to subsections (d) and (e).
                    ``(B) Submission to the court.--The Attorney 
                General shall submit to the Court any such 
                certification or procedure, or amendment thereto, not 
                later than 5 days after making or amending the 
                certification or adopting or amending the procedures.
            ``(2) Certifications.--The Court shall review a 
        certification provided under subsection (f) to determine 
        whether the certification contains all the required elements.
            ``(3) Targeting procedures.--The Court shall review the 
        targeting procedures required by subsection (d) to assess 
        whether the procedures are reasonably designed to ensure that 
        the acquisition authorized under subsection (a) is limited to 
        the targeting of persons reasonably believed to be located 
        outside the United States and does not result in 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.
            ``(4) Minimization procedures.--The Court shall review the 
        minimization procedures required by subsection (e) to assess 
        whether such procedures meet the definition of minimization 
        procedures under section 101(h) or section 301(4).
            ``(5) Orders.--
                    ``(A) Approval.--If the Court finds that a 
                certification required by subsection (f) contains all 
                of the required elements and that the targeting and 
                minimization procedures required by 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 continued use of the 
                procedures for the acquisition authorized under 
                subsection (a).
                    ``(B) Correction of deficiencies.--If the Court 
                finds that a certification required by subsection (f) 
                does not contain all of the required elements, or that 
                the procedures required by 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 the Court issues the order; or
                            ``(ii) cease the acquisition authorized 
                        under subsection (a).
                    ``(C) Requirement for written statement.--In 
                support of its orders under this subsection, the Court 
                shall provide, simultaneously with the orders, for the 
                record a written statement of its reasons.
            ``(6) Appeal.--
                    ``(A) Appeal to the court of review.--The 
                Government may appeal any order under this section to 
                the Foreign Intelligence Surveillance Court of Review, 
                which shall have jurisdiction to review such order. For 
                any decision 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 its reasons.
                    ``(B) Continuation of acquisition pending rehearing 
                or appeal.--Any acquisitions affected by an order under 
                paragraph (5)(B) may continue--
                            ``(i) during the pendency of any rehearing 
                        of the order by the Court en banc; and
                            ``(ii) if the Government appeals 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 an appeal of an order 
                under paragraph (5)(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 appeal.
                    ``(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.
    ``(i) Expedited Judicial Proceedings.--Judicial proceedings under 
this section shall be conducted as expeditiously as possible.
    ``(j) Maintenance and Security of Records and Proceedings.--
            ``(1) Standards.--A record of a proceeding under this 
        section, including petitions filed, orders granted, and 
        statements of reasons for decision, shall be maintained 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.--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.
    ``(k) 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 required by subsections (e) and (f) and 
        shall submit each such assessment to--
                    ``(A) the Foreign Intelligence Surveillance Court; 
                and
                    ``(B) the congressional intelligence committees.
            ``(2) Agency assessment.--The Inspectors General of the 
        Department of Justice and of any element of the intelligence 
        community authorized to acquire foreign intelligence 
        information under subsection (a) with respect to their 
        department, agency, or element--
                    ``(A) are authorized to review the compliance with 
                the targeting and minimization procedures required by 
                subsections (d) and (e);
                    ``(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 their 
                communications were reviewed; and
                    ``(D) shall provide each such review to--
                            ``(i) the Attorney General;
                            ``(ii) the Director of National 
                        Intelligence; and
                            ``(iii) the congressional intelligence 
                        committees.
            ``(3) Annual review.--
                    ``(A) Requirement to conduct.--The head of an 
                element of the intelligence community conducting an 
                acquisition authorized under subsection (a) shall 
                direct the element to 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 such 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 
                        their communications were reviewed; and
                            ``(iv) a description of any procedures 
                        developed by the head of an 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, as well as 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 or 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) the congressional intelligence 
                        committees.

``SEC. 704. CERTAIN ACQUISITIONS INSIDE THE UNITED STATES OF 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 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 such acquisition constitutes 
        electronic surveillance (as defined in section 101(f), 
        regardless of the limitation of section 701) 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.--In the event that a United States person 
        targeted under this subsection is reasonably believed to be 
        located in the United States during the pendency of an order 
        issued pursuant to subsection (c), such acquisition shall cease 
        until authority, other than under this section, is obtained 
        pursuant to this Act or the targeted United States person is 
        again reasonably believed to be located outside the United 
        States during the pendency of an order issued pursuant to 
        subsection (c).
    ``(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 the proposed minimization 
                procedures that meet the definition of minimization 
                procedures under section 101(h) or section 301(4);
                    ``(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, however, 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 
        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 section 301(4); and
                    ``(D) the application which 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 an order under paragraph 
        (1), a judge having jurisdiction under subsection (a)(1) may 
        consider past activities of the target, as well as facts and 
        circumstances relating to current or future activities of the 
        target. However, 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 to 
                issue an order under paragraph (1), 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 clause pursuant to subsection (f).
                    ``(C) Review of minimization procedures.--If the 
                judge determines that the proposed minimization 
                procedures required under paragraph (1)(C) do not meet 
                the definition of minimization procedures under section 
                101(h) or section 301(4), 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 clause 
                pursuant to subsection (f).
                    ``(D) Review of certification.--If the judge 
                determines that an application required by 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 such 
                determination. The Government may appeal an order under 
                this clause 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) 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) Directions.--An order approving acquisitions under 
        this subsection shall direct--
                    ``(A) that the minimization procedures be followed;
                    ``(B) an electronic communication service provider 
                to provide to the Government forthwith all information, 
                facilities, or assistance necessary to accomplish the 
                acquisition authorized under this subsection 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;
                    ``(C) 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) 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 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).
            ``(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 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 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 subsection 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 such emergency acquisition, the Attorney General 
        shall require that the minimization procedures required by this 
        section for the issuance of a judicial order be followed.
            ``(3) Termination of emergency authorization.--In the 
        absence of a judicial order approving such acquisition, the 
        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.--In the event that such 
        application for approval 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 during the pendency of the 7-day emergency 
        acquisition period, 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.--Notwithstanding any other law, 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 subsections (c) or (d).
    ``(f) Appeal.--
            ``(1) Appeal to the foreign intelligence surveillance court 
        of review.--The Government may file an appeal 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 appeal 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 the 
        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. 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 or 
        the Attorney General has authorized an emergency acquisition 
        pursuant to subsections (c) or (d) or any other provision of 
        this Act.
            ``(3) Limitations.--
                    ``(A) Moving or misidentified targets.--In the 
                event that the targeted United States person is 
                reasonably believed to be in the United States during 
                the pendency of an order issued pursuant to subsection 
                (c), such acquisition shall cease until authority is 
                obtained pursuant to this Act or the targeted United 
                States person is again reasonably believed to be 
                located outside the United States during the pendency 
                of an order issued pursuant to subsection (c).
                    ``(B) Applicability.--If the acquisition is to be 
                conducted inside the United States and could be 
                authorized under section 704, the procedures of section 
                704 shall apply, unless an order or emergency 
                acquisition authority has been obtained under a 
                provision of this Act other than under this section.
    ``(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, if known, or a description of the 
        specific United States person who is the target of the 
        acquisition;
            ``(2) 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;
            ``(3) a statement of the proposed minimization procedures 
        that meet the definition of minimization procedures under 
        section 101(h) or section 301(4);
            ``(4) 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;
            ``(5) 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
            ``(6) 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.--If, upon an application made pursuant to 
        subsection (b), a judge having jurisdiction under subsection 
        (a) finds that--
                    ``(A) 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;
                    ``(B) the proposed minimization procedures, with 
                respect to their dissemination provisions, meet the 
                definition of minimization procedures under section 
                101(h) or section 301(4); and
                    ``(C) the application which has been filed contains 
                all statements and certifications required by 
                subsection (b) and the certification provided under 
                subsection (b)(4) is not clearly erroneous on the basis 
                of the information furnished under subsection (b),
        the Court shall issue an ex parte order so stating.
            ``(2) Probable cause.--In determining whether or not 
        probable cause exists for purposes of an order under paragraph 
        (1)(A), a judge having jurisdiction under subsection (a)(1) may 
        consider past activities of the target, as well as facts and 
        circumstances relating to current or future activities of the 
        target. However, 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 clause 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 section 301(4), 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 clause 
                pursuant to subsection (e).
                    ``(D) Scope of review of certification.--If the 
                judge determines that the certification provided under 
                subsection (b)(4) 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 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 in this subsection, 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 may, with due 
                diligence, be obtained, and
                    ``(B) the factual basis for 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 subsection 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 such emergency acquisition, the Attorney General 
        shall require that the minimization procedures required by this 
        section be followed.
            ``(3) Termination of emergency authorization.--In the 
        absence of an order under subsection (c), the acquisition 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.--In the event that such 
        application 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 during the pendency of the 7-day emergency 
        acquisition period, 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 an appeal 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 appeal 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 the 
        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. 706. JOINT APPLICATIONS AND CONCURRENT AUTHORIZATIONS.

    ``(a) Joint Applications and Orders.--If an acquisition targeting a 
United States person under section 704 or section 705 is proposed to be 
conducted both inside and outside the United States, a judge having 
jurisdiction under section 704(a)(1) or section 705(a)(1) may issue 
simultaneously, upon the request of the Government in a joint 
application complying with the requirements of section 704(b) or 
section 705(b), orders under section 704(c) or section 705(c), as 
applicable.
    ``(b) Concurrent Authorization.--If an order authorizing electronic 
surveillance or physical search has been obtained under section 105 or 
section 304 and that order is still in effect, the Attorney General may 
authorize, without an order under section 704 or section 705, an 
acquisition of foreign intelligence information targeting that United 
States person while such person is reasonably believed to be located 
outside the United States.

``SEC. 707. USE OF INFORMATION ACQUIRED UNDER TITLE VII.

    ``(a) 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, except for the purposes of subsection 
(j) of such section.
    ``(b) Information Acquired Under Section 704.--Information acquired 
from an acquisition conducted under section 704 shall be deemed to be 
information acquired from an electronic surveillance pursuant to title 
I for purposes of section 106.

``SEC. 708. 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, 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 subparagraph (a) shall 
include--
            ``(1) with respect to section 703--
                    ``(A) any certifications made under subsection 
                703(f) during the reporting period;
                    ``(B) any directives issued under subsection 703(g) 
                during the reporting period;
                    ``(C) a description of the judicial review during 
                the reporting period of any such certifications and 
                targeting and minimization procedures utilized with 
                respect to such acquisition, including a copy of any 
                order or pleading in connection with such review that 
                contains a significant legal interpretation of the 
                provisions of this section;
                    ``(D) any actions taken to challenge or enforce a 
                directive under paragraphs (4) or (5) of section 
                703(g);
                    ``(E) any compliance reviews conducted by the 
                Department of Justice or the Office of the Director of 
                National Intelligence of acquisitions authorized under 
                subsection 703(a);
                    ``(F) a description of any incidents of 
                noncompliance with a directive issued by the Attorney 
                General and the Director of National Intelligence under 
                subsection 703(g), including--
                            ``(i) incidents of noncompliance by an 
                        element of the intelligence community with 
                        procedures adopted pursuant to subsections (d) 
                        and (e) of section 703; and
                            ``(ii) incidents of noncompliance by a 
                        specified person to whom the Attorney General 
                        and Director of National Intelligence issued a 
                        directive under subsection 703(g); and
                    ``(G) any procedures implementing this section;
            ``(2) 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 either 
                granted, modified, or 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 acquisitions; and
            ``(3) with respect to section 705--
                    ``(A) the total number of applications made for 
                orders under 705(b);
                    ``(B) the total number of such orders either 
                granted, modified, or denied; and
                    ``(C) the total number of emergency acquisitions 
                authorized by the Attorney General under subsection 
                705(d) and the total number of subsequent orders 
                approving or denying such applications.''.
    (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. Limitation on definition of electronic surveillance.
``Sec. 702. Definitions.
``Sec. 703. Procedures for targeting certain persons outside the United 
                            States other than United States persons.
``Sec. 704. Certain acquisitions inside the United States of United 
                            States persons outside the United States.
``Sec. 705. Other acquisitions targeting United States persons outside 
                            the United States.
``Sec. 706. Joint applications and concurrent authorizations.
``Sec. 707. Use of information acquired under title VII.
``Sec. 708. Congressional oversight.''.
    (c) Technical and Conforming Amendments.--
            (1) Title 18, united states code.--
                    (A) Section 2232.--Section 2232(e) of title 18, 
                United States Code, is amended by inserting ``(as 
                defined in section 101(f) of the Foreign Intelligence 
                Surveillance Act of 1978, regardless of the limitation 
                of section 701 of that Act)'' after ``electronic 
                surveillance''.
                    (B) Section 2511.--Section 2511(2)(a)(ii)(A) of 
                title 18, United States Code, is amended by inserting 
                ``or a court order pursuant to section 705 of the 
                Foreign Intelligence Surveillance Act of 1978'' after 
                ``assistance''.
            (2) Foreign intelligence surveillance act of 1978.--
                    (A) Section 109.--Section 109 of the Foreign 
                Intelligence Surveillance Act of 1978 (50 U.S.C. 1809) 
                is amended by adding at the end the following:
    ``(e) Definition.--For the purpose of this section, the term 
`electronic surveillance' means electronic surveillance as defined in 
section 101(f) of this Act regardless of the limitation of section 701 
of this Act.''.
                    (B) Section 110.--Section 110 of the Foreign 
                Intelligence Surveillance Act of 1978 (50 U.S.C. 1810) 
                is amended by--
                            (i) adding an ``(a)'' before ``Civil 
                        Action'',
                            (ii) redesignating subsections (a) through 
                        (c) as paragraphs (1) through (3), 
                        respectively; and
                            (iii) adding at the end the following:
    ``(b) Definition.--For the purpose of this section, the term 
`electronic surveillance' means electronic surveillance as defined in 
section 101(f) of this Act regardless of the limitation of section 701 
of this Act.''.
                    (C) Section 601.--Section 601(a)(1) of the Foreign 
                Intelligence Surveillance Act of 1978 (50 U.S.C. 
                1871(a)(1)) is amended by striking subparagraphs (C) 
                and (D) and inserting the following:
                    ``(C) pen registers under section 402;
                    ``(D) access to records under section 501;
                    ``(E) acquisitions under section 704; and
                    ``(F) acquisitions under section 705;''.
    (d) Termination of Authority.--
            (1) In general.--Except as provided in paragraph (2), the 
        amendments made by subsections (a)(2), (b), and (c) shall cease 
        to have effect on December 31, 2013.
            (2) Continuing applicability.--Section 703(g)(3) of the 
        Foreign Intelligence Surveillance Act of 1978 (as amended by 
        subsection (a)) shall remain in effect with respect to any 
        directive issued pursuant to section 703(g) of that Act (as so 
        amended) for information, facilities, or assistance provided 
        during the period such directive was or is in effect. Section 
        704(e) of the Foreign Intelligence Surveillance Act of 1978 (as 
        amended by subsection (a)) shall remain in effect with respect 
        to an order or request for emergency assistance under that 
        section. The use of information acquired by an acquisition 
        conducted under section 703 of that Act (as so amended) shall 
        continue to be governed by the provisions of section 707 of 
        that Act (as so amended).

SEC. 102. STATEMENT OF EXCLUSIVE MEANS BY WHICH ELECTRONIC SURVEILLANCE 
              AND INTERCEPTION OF DOMESTIC 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 domestic communications may be conducted

    ``Sec. 112.  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 (as defined in section 101(f), regardless 
of the limitation of section 701) and the interception of domestic 
wire, oral, or electronic communications may be conducted.''.
    (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 adding after the item relating to section 111, the 
following:

``Sec. 112. Statement of exclusive means by which electronic 
                            surveillance and interception of domestic 
                            communications may be conducted.''.
    (c) Conforming Amendments.--Section 2511(2) of title 18, United 
States Code, is amended in paragraph (f), by striking ``, as defined in 
section 101 of such Act,'' and inserting ``(as defined in section 
101(f) of such Act regardless of the limitation of section 701 of such 
Act)''.

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 any 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; court.--The 
        term ```Foreign Intelligence Surveillance Court''' means the 
        court established by section 103(a).
            ``(2) Foreign intelligence surveillance court of review; 
        court of review.--The term `Foreign Intelligence Surveillance 
        Court of Review' means the court established by 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.

    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) resonably determines that the factual basis for 
        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).''.

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); and
                    (B) by redesignating paragraphs (2) through (5) as 
                paragraphs (1) through (4), respectively; 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 reasonably--
            ``(A) 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) 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)(A) 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.
    ``(B) The Attorney General shall assess compliance with the 
requirements of subparagraph (A).''.
    (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 
703(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:
    ``(h)(1) Nothing in this Act shall be considered to reduce or 
contravene the inherent authority of the Foreign Intelligence 
Surveillance Court to determine, or enforce, compliance with an order 
or a rule of such Court or with a procedure approved by such Court.
    ``(2) In this subsection, the terms `Foreign Intelligence 
Surveillance Court' and `Court' mean the court established by 
subsection (a).''.

SEC. 110. WEAPONS OF MASS DESTRUCTION.

    (a) Definitions.--
            (1) Foreign power.--Subsection (a)(4) of section 101 of the 
        Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
        1801(a)(4)) is amended by inserting ``, the international 
        proliferation of weapons of mass destruction,'' after 
        ``international terrorism''.
            (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 inserting after subsection (o) the following:
    ``(p) `Weapon of mass destruction' means--
            ``(1) any destructive device described in section 
        921(a)(4)(A) of title 18, United States Code, that is intended 
        or has the capability to cause death or serious bodily injury 
        to a significant number of people;
            ``(2) any weapon that is designed or intended to cause 
        death or serious bodily injury 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); or
            ``(4) any weapon that is designed to release radiation or 
        radioactivity at a level dangerous to human life.''.
    (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 Amendment.--Section 301(1) of the 
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1821(1)) is 
amended by inserting ```weapon of mass destruction','' after 
```person',''.

SEC. 111. TECHNICAL AND CONFORMING AMENDMENTS.

    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 ``105B(h) or 501(f)(1)'' 
        and inserting ``501(f)(1) or 703''; and
            (2) in paragraph (2), by striking ``105B(h) or 501(f)(1)'' 
        and inserting ``501(f)(1) or 703''.

  TITLE II--PROTECTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS

SEC. 201. 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) Contents.--The term ``contents'' has the meaning given 
        that term in section 101(n) of the Foreign Intelligence 
        Surveillance Act of 1978 (50 U.S.C. 1801(n)).
            (3) 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.
            (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 an 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).
            (5) Element of the intelligence community.--The term 
        ``element of the intelligence community'' means an element of 
        the intelligence community specified in or designated under 
        section 3(4) of the National Security Act of 1947 (50 U.S.C. 
        401a(4)).

SEC. 202. LIMITATIONS ON CIVIL ACTIONS FOR ELECTRONIC COMMUNICATION 
              SERVICE PROVIDERS.

    (a) Limitations.--
            (1) In general.--Notwithstanding any other provision of 
        law, a covered civil action shall not lie or be maintained in a 
        Federal or State court, and shall be promptly dismissed, if the 
        Attorney General certifies to the court that--
                    (A) the assistance alleged to have been provided by 
                the electronic communication service provider was--
                            (i) 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
                            (ii) described in a written request or 
                        directive 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
                    (B) the electronic communication service provider 
                did not provide the alleged assistance.
            (2) Review.--A certification made pursuant to paragraph (1) 
        shall be subject to review by a court for abuse of discretion.
    (b) Review of Certifications.--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) would 
harm the national security of the United States, the court shall--
            (1) review such certification in camera and ex parte; and
            (2) limit any public disclosure concerning such 
        certification, including any public order following such an ex 
        parte review, to a statement that the conditions of subsection 
        (a) have been met, without disclosing the subparagraph of 
        subsection (a)(1) that is the basis for the certification.
    (c) Nondelegation.--The authority and duties of the Attorney 
General under this section shall be performed by the Attorney General 
(or Acting Attorney General) or a designee in a position not lower than 
the Deputy Attorney General.
    (d) Civil Actions in State Court.--A covered civil action 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.
    (e) Rule of Construction.--Nothing in this section may be construed 
to limit any otherwise available immunity, privilege, or defense under 
any other provision of law.
    (f) Effective Date and Application.--This section shall apply to 
any covered civil action that is pending on or filed after the date of 
enactment of this Act.

SEC. 203. 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 after 
title VII 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) Attorney general.--The term `Attorney General' has 
        the meaning give that term in section 101(g).
            ``(3) Contents.--The term `contents' has the meaning given 
        that term in section 101(n).
            ``(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;
                    ``(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).
            ``(5) Element of the intelligence community.--The term 
        `element of the intelligence community' means an element of the 
        intelligence community as specified or designated under section 
        3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)).
            ``(6) 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 in effect on the day 
                        before the date of the enactment of the FISA 
                        Amendments Act of 2008 or 703(h).
            ``(7) 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.--
            ``(1) In general.--Notwithstanding any other provision of 
        law, no civil action may 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 court 
        that--
                    ``(A) any assistance by that person was provided 
                pursuant to an order of the court established under 
                section 103(a) directing such assistance;
                    ``(B) 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;
                    ``(C) any assistance by that person was provided 
                pursuant to a directive under sections 102(a)(4), 
                105B(e), as in effect on the day before the date of the 
                enactment of the FISA Amendments Act of 2008, or 703(h) 
                directing such assistance; or
                    ``(D) the person did not provide the alleged 
                assistance.
            ``(2) Review.--A certification made pursuant to paragraph 
        (1) shall be subject to review by a court for abuse of 
        discretion.
    ``(b) 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) would 
harm the national security of the United States, the court shall--
            ``(1) review such certification in camera and ex parte; and
            ``(2) limit any public disclosure concerning such 
        certification, including any public order following such an ex 
        parte review, to a statement that the conditions of subsection 
        (a) have been met, without disclosing the subparagraph of 
        subsection (a)(1) that is the basis for the certification.
    ``(c) 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.
    ``(d) Relationship to Other Laws.--Nothing in this section may be 
construed to limit any otherwise available immunity, privilege, or 
defense under any other provision of law.
    ``(e) Applicability.--This section shall apply to a civil action 
pending on or filed after the date of enactment of the FISA Amendments 
Act of 2008.''.

SEC. 204. PREEMPTION OF STATE INVESTIGATIONS.

    Title VIII of the Foreign Intelligence Surveillance Act (50 U.S.C. 
1801 et seq.), as added by section 203 of this Act, is amended by 
adding at the end the following new section:

``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 filed after the date of 
enactment of the FISA Amendments Act of 2008.''.

SEC. 205. 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.''.

                      TITLE III--OTHER PROVISIONS

SEC. 301. 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, any such amendments, and of 
the application of such provisions to other persons and circumstances 
shall not be affected thereby.

SEC. 302. EFFECTIVE DATE; REPEAL; TRANSITION PROCEDURES.

    (a) In General.--Except as provided in subsection (c), the 
amendments made by this Act shall take effect on the date of the 
enactment of this Act.
    (b) Repeal.--
            (1) In general.--Except as provided in subsection (c), 
        sections 105A, 105B, and 105C of the Foreign Intelligence 
        Surveillance Act of 1978 (50 U.S.C. 1805a, 1805b, and 1805c) 
        are repealed.
            (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 striking the items 
        relating to sections 105A, 105B, and 105C.
    (c) Transitions Procedures.--
            (1) Protection from liability.--Notwithstanding subsection 
        (b)(1), subsection (l) of section 105B of the Foreign 
        Intelligence Surveillance Act of 1978 shall remain in effect 
        with respect to any directives issued pursuant to such section 
        105B for information, facilities, or assistance provided during 
        the period such directive was or is in effect.
            (2) Orders in effect.--
                    (A) Orders in effect on date of enactment.--
                Notwithstanding any other provision of this Act or of 
                the Foreign Intelligence Surveillance Act of 1978--
                            (i) any order in effect on the date of 
                        enactment of this Act issued pursuant to the 
                        Foreign Intelligence Surveillance Act of 1978 
                        or section 6(b) of the Protect America Act of 
                        2007 (Public Law 110-55; 121 Stat. 556) shall 
                        remain in effect until the date of expiration 
                        of such order; and
                            (ii) 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 reauthorize such 
                        order if the facts and circumstances continue 
                        to justify issuance of such order under the 
                        provisions of such Act, as in effect on the day 
                        before the date of the enactment of the Protect 
                        America Act of 2007, except as amended by 
                        sections 102, 103, 104, 105, 106, 107, 108, 
                        109, and 110 of this Act.
                    (B) Orders in effect on december 31, 2013.--Any 
                order issued under title VII of the Foreign 
                Intelligence Surveillance Act of 1978, as amended by 
                section 101 of this Act, in effect on December 31, 
                2013, shall continue in effect until the date of the 
                expiration of such order. Any such order shall be 
                governed by the applicable provisions of the Foreign 
                Intelligence Surveillance Act of 1978, as so amended.
            (3) Authorizations and directives in effect.--
                    (A) Authorizations and directives in effect on date 
                of enactment.--Notwithstanding any other provision of 
                this Act or of the Foreign Intelligence Surveillance 
                Act of 1978, any authorization or directive in effect 
                on the date of the enactment of this Act issued 
                pursuant to the Protect America Act of 2007, or any 
                amendment made by that Act, shall remain in effect 
                until the date of expiration of such authorization or 
                directive. Any such authorization or directive shall be 
                governed by the applicable provisions of the Protect 
                America Act of 2007 (121 Stat. 552), and the amendment 
                made by that Act, and, except as provided in paragraph 
                (4) of this subsection, any acquisition pursuant to 
                such authorization or directive shall be deemed not 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)), as 
                construed in accordance with section 105A of the 
                Foreign Intelligence Surveillance Act of 1978 (50 
                U.S.C. 1805a)).
                    (B) Authorizations and directives in effect on 
                december 31, 2013.--Any authorization or directive 
                issued under title VII of the Foreign Intelligence 
                Surveillance Act of 1978, as amended by section 101 of 
                this Act, in effect on December 31, 2013, shall 
                continue in effect until the date of the expiration of 
                such authorization or directive. Any such authorization 
                or directive shall be governed by the applicable 
                provisions of the Foreign Intelligence Surveillance Act 
                of 1978, as so amended, and, except as provided in 
                section 707 of the Foreign Intelligence Surveillance 
                Act of 1978, as so amended, any acquisition pursuant to 
                such authorization or directive shall be deemed not to 
                constitute electronic surveillance (as that term is 
                defined in section 101(f) of the Foreign Intelligence 
                Surveillance Act of 1978, to the extent that such 
                section 101(f) is limited by section 701 of the Foreign 
                Intelligence Surveillance Act of 1978, as so amended).
            (4) Use of information acquired under protect america 
        act.--Information acquired from an acquisition conducted under 
        the Protect America Act of 2007, and the amendments made by 
        that Act, 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 that Act (50 U.S.C. 1806), 
        except for purposes of subsection (j) of such section.
            (5) New orders.--Notwithstanding any other provision of 
        this Act or of the Foreign Intelligence Surveillance Act of 
        1978--
                    (A) the government may file an application for an 
                order under the Foreign Intelligence Surveillance Act 
                of 1978, as in effect on the day before the date of the 
                enactment of the Protect America Act of 2007, except as 
                amended by sections 102, 103, 104, 105, 106, 107, 108, 
                109, and 110 of this Act; and
                    (B) the court established under section 103(a) of 
                the Foreign Intelligence Surveillance Act of 1978 shall 
                enter an order granting such an application if the 
                application meets the requirements of such Act, as in 
                effect on the day before the date of the enactment of 
                the Protect America Act of 2007, except as amended by 
                sections 102, 103, 104, 105, 106, 107, 108, 109, and 
                110 of this Act.
            (6) Extant authorizations.--At the request of the 
        applicant, the court established under section 103(a) of the 
        Foreign Intelligence Surveillance Act of 1978 shall extinguish 
        any extant authorization to conduct electronic surveillance or 
        physical search entered pursuant to such Act.
            (7) Applicable provisions.--Any surveillance conducted 
        pursuant to an order entered pursuant to this subsection shall 
        be subject to the provisions of the Foreign Intelligence 
        Surveillance Act of 1978, as in effect on the day before the 
        date of the enactment of the Protect America Act of 2007, 
        except as amended by sections 102, 103, 104, 105, 106, 107, 
        108, 109, and 110 of this Act.
            (8) 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 remain 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.

            Attest:

                                                             Secretary.
110th CONGRESS

  2d Session

                               H.R. 3773

_______________________________________________________________________

                               AMENDMENT