[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6304 Enrolled Bill (ENR)]
H.R.6304
One Hundred Tenth Congress
of the
United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Thursday,
the third day of January, two thousand and eight
An Act
To amend the Foreign Intelligence Surveillance Act of 1978 to establish
a procedure for authorizing certain acquisitions of foreign
intelligence, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Foreign
Intelligence Surveillance Act of 1978 Amendments Act of 2008'' or the
``FISA Amendments Act of 2008''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
TITLE I--FOREIGN INTELLIGENCE SURVEILLANCE
Sec. 101. Additional procedures regarding certain persons outside the
United States.
Sec. 102. Statement of exclusive means by which electronic surveillance
and interception of certain communications may be conducted.
Sec. 103. Submittal to Congress of certain court orders under the
Foreign Intelligence Surveillance Act of 1978.
Sec. 104. Applications for court orders.
Sec. 105. Issuance of an order.
Sec. 106. Use of information.
Sec. 107. Amendments for physical searches.
Sec. 108. Amendments for emergency pen registers and trap and trace
devices.
Sec. 109. Foreign Intelligence Surveillance Court.
Sec. 110. Weapons of mass destruction.
TITLE II--PROTECTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS
Sec. 201. Procedures for implementing statutory defenses under the
Foreign Intelligence Surveillance Act of 1978.
Sec. 202. Technical amendments.
TITLE III--REVIEW OF PREVIOUS ACTIONS
Sec. 301. Review of previous actions.
TITLE IV--OTHER PROVISIONS
Sec. 401. Severability.
Sec. 402. Effective date.
Sec. 403. Repeals.
Sec. 404. Transition procedures.
TITLE I--FOREIGN INTELLIGENCE SURVEILLANCE
SEC. 101. ADDITIONAL PROCEDURES REGARDING CERTAIN PERSONS OUTSIDE
THE UNITED STATES.
(a) In General.--The Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et seq.) is amended--
(1) by striking title VII; and
(2) by adding at the end the following:
``TITLE VII--ADDITIONAL PROCEDURES REGARDING CERTAIN PERSONS OUTSIDE
THE UNITED STATES
``SEC. 701. DEFINITIONS.
``(a) In General.--The terms `agent of a foreign power', `Attorney
General', `contents', `electronic surveillance', `foreign intelligence
information', `foreign power', `person', `United States', and `United
States person' have the meanings given such terms in section 101,
except as specifically provided in this title.
``(b) Additional Definitions.--
``(1) Congressional intelligence committees.--The term
`congressional intelligence committees' means--
``(A) the Select Committee on Intelligence of the Senate;
and
``(B) the Permanent Select Committee on Intelligence of the
House of Representatives.
``(2) Foreign intelligence surveillance court; court.--The
terms `Foreign Intelligence Surveillance Court' and `Court' mean
the court established under section 103(a).
``(3) Foreign intelligence surveillance court of review; court
of review.--The terms `Foreign Intelligence Surveillance Court of
Review' and `Court of Review' mean the court established under
section 103(b).
``(4) Electronic communication service provider.--The term
`electronic communication service provider' means--
``(A) a telecommunications carrier, as that term is defined
in section 3 of the Communications Act of 1934 (47 U.S.C. 153);
``(B) a provider of electronic communication service, as
that term is defined in section 2510 of title 18, United States
Code;
``(C) a provider of a remote computing service, as that
term is defined in section 2711 of title 18, United States
Code;
``(D) any other communication service provider who has
access to wire or electronic communications either as such
communications are transmitted or as such communications are
stored; or
``(E) an officer, employee, or agent of an entity described
in subparagraph (A), (B), (C), or (D).
``(5) Intelligence community.--The term `intelligence
community' has the meaning given the term in section 3(4) of the
National Security Act of 1947 (50 U.S.C. 401a(4)).
``SEC. 702. PROCEDURES FOR TARGETING CERTAIN PERSONS OUTSIDE THE
UNITED STATES OTHER THAN UNITED STATES PERSONS.
``(a) Authorization.--Notwithstanding any other provision of law,
upon the issuance of an order in accordance with subsection (i)(3) or a
determination under subsection (c)(2), the Attorney General and the
Director of National Intelligence may authorize jointly, for a period
of up to 1 year from the effective date of the authorization, the
targeting of persons reasonably believed to be located outside the
United States to acquire foreign intelligence information.
``(b) Limitations.--An acquisition authorized under subsection
(a)--
``(1) may not intentionally target any person known at the time
of acquisition to be located in the United States;
``(2) may not intentionally target a person reasonably believed
to be located outside the United States if the purpose of such
acquisition is to target a particular, known person reasonably
believed to be in the United States;
``(3) may not intentionally target a United States person
reasonably believed to be located outside the United States;
``(4) may not intentionally acquire any communication as to
which the sender and all intended recipients are known at the time
of the acquisition to be located in the United States; and
``(5) shall be conducted in a manner consistent with the fourth
amendment to the Constitution of the United States.
``(c) Conduct of Acquisition.--
``(1) In general.--An acquisition authorized under subsection
(a) shall be conducted only in accordance with--
``(A) the targeting and minimization procedures adopted in
accordance with subsections (d) and (e); and
``(B) upon submission of a certification in accordance with
subsection (g), such certification.
``(2) Determination.--A determination under this paragraph and
for purposes of subsection (a) is a determination by the Attorney
General and the Director of National Intelligence that exigent
circumstances exist because, without immediate implementation of an
authorization under subsection (a), intelligence important to the
national security of the United States may be lost or not timely
acquired and time does not permit the issuance of an order pursuant
to subsection (i)(3) prior to the implementation of such
authorization.
``(3) Timing of determination.--The Attorney General and the
Director of National Intelligence may make the determination under
paragraph (2)--
``(A) before the submission of a certification in
accordance with subsection (g); or
``(B) by amending a certification pursuant to subsection
(i)(1)(C) at any time during which judicial review under
subsection (i) of such certification is pending.
``(4) Construction.--Nothing in title I shall be construed to
require an application for a court order under such title for an
acquisition that is targeted in accordance with this section at a
person reasonably believed to be located outside the United States.
``(d) Targeting Procedures.--
``(1) Requirement to adopt.--The Attorney General, in
consultation with the Director of National Intelligence, shall
adopt targeting procedures that are reasonably designed to--
``(A) ensure that any acquisition authorized under
subsection (a) is limited to targeting persons reasonably
believed to be located outside the United States; and
``(B) prevent the intentional acquisition of any
communication as to which the sender and all intended
recipients are known at the time of the acquisition to be
located in the United States.
``(2) Judicial review.--The procedures adopted in accordance
with paragraph (1) shall be subject to judicial review pursuant to
subsection (i).
``(e) Minimization Procedures.--
``(1) Requirement to adopt.--The Attorney General, in
consultation with the Director of National Intelligence, shall
adopt minimization procedures that meet the definition of
minimization procedures under section 101(h) or 301(4), as
appropriate, for acquisitions authorized under subsection (a).
``(2) Judicial review.--The minimization procedures adopted in
accordance with paragraph (1) shall be subject to judicial review
pursuant to subsection (i).
``(f) Guidelines for Compliance With Limitations.--
``(1) Requirement to adopt.--The Attorney General, in
consultation with the Director of National Intelligence, shall
adopt guidelines to ensure--
``(A) compliance with the limitations in subsection (b);
and
``(B) that an application for a court order is filed as
required by this Act.
``(2) Submission of guidelines.--The Attorney General shall
provide the guidelines adopted in accordance with paragraph (1)
to--
``(A) the congressional intelligence committees;
``(B) the Committees on the Judiciary of the Senate and the
House of Representatives; and
``(C) the Foreign Intelligence Surveillance Court.
``(g) Certification.--
``(1) In general.--
``(A) Requirement.--Subject to subparagraph (B), prior to
the implementation of an authorization under subsection (a),
the Attorney General and the Director of National Intelligence
shall provide to the Foreign Intelligence Surveillance Court a
written certification and any supporting affidavit, under oath
and under seal, in accordance with this subsection.
``(B) Exception.--If the Attorney General and the Director
of National Intelligence make a determination under subsection
(c)(2) and time does not permit the submission of a
certification under this subsection prior to the implementation
of an authorization under subsection (a), the Attorney General
and the Director of National Intelligence shall submit to the
Court a certification for such authorization as soon as
practicable but in no event later than 7 days after such
determination is made.
``(2) Requirements.--A certification made under this subsection
shall--
``(A) attest that--
``(i) there are procedures in place that have been
approved, have been submitted for approval, or will be
submitted with the certification for approval by the
Foreign Intelligence Surveillance Court that are reasonably
designed to--
``(I) ensure that an acquisition authorized under
subsection (a) is limited to targeting persons
reasonably believed to be located outside the United
States; and
``(II) prevent the intentional acquisition of any
communication as to which the sender and all intended
recipients are known at the time of the acquisition to
be located in the United States;
``(ii) the minimization procedures to be used with
respect to such acquisition--
``(I) meet the definition of minimization
procedures under section 101(h) or 301(4), as
appropriate; and
``(II) have been approved, have been submitted for
approval, or will be submitted with the certification
for approval by the Foreign Intelligence Surveillance
Court;
``(iii) guidelines have been adopted in accordance with
subsection (f) to ensure compliance with the limitations in
subsection (b) and to ensure that an application for a
court order is filed as required by this Act;
``(iv) the procedures and guidelines referred to in
clauses (i), (ii), and (iii) are consistent with the
requirements of the fourth amendment to the Constitution of
the United States;
``(v) a significant purpose of the acquisition is to
obtain foreign intelligence information;
``(vi) the acquisition involves obtaining foreign
intelligence information from or with the assistance of an
electronic communication service provider; and
``(vii) the acquisition complies with the limitations
in subsection (b);
``(B) include the procedures adopted in accordance with
subsections (d) and (e);
``(C) be supported, as appropriate, by the affidavit of any
appropriate official in the area of national security who is--
``(i) appointed by the President, by and with the
advice and consent of the Senate; or
``(ii) the head of an element of the intelligence
community;
``(D) include--
``(i) an effective date for the authorization that is
at least 30 days after the submission of the written
certification to the court; or
``(ii) if the acquisition has begun or the effective
date is less than 30 days after the submission of the
written certification to the court, the date the
acquisition began or the effective date for the
acquisition; and
``(E) if the Attorney General and the Director of National
Intelligence make a determination under subsection (c)(2),
include a statement that such determination has been made.
``(3) Change in effective date.--The Attorney General and the
Director of National Intelligence may advance or delay the
effective date referred to in paragraph (2)(D) by submitting an
amended certification in accordance with subsection (i)(1)(C) to
the Foreign Intelligence Surveillance Court for review pursuant to
subsection (i).
``(4) Limitation.--A certification made under this subsection
is not required to identify the specific facilities, places,
premises, or property at which an acquisition authorized under
subsection (a) will be directed or conducted.
``(5) Maintenance of certification.--The Attorney General or a
designee of the Attorney General shall maintain a copy of a
certification made under this subsection.
``(6) Review.--A certification submitted in accordance with
this subsection shall be subject to judicial review pursuant to
subsection (i).
``(h) Directives and Judicial Review of Directives.--
``(1) Authority.--With respect to an acquisition authorized
under subsection (a), the Attorney General and the Director of
National Intelligence may direct, in writing, an electronic
communication service provider to--
``(A) immediately provide the Government with all
information, facilities, or assistance necessary to accomplish
the acquisition in a manner that will protect the secrecy of
the acquisition and produce a minimum of interference with the
services that such electronic communication service provider is
providing to the target of the acquisition; and
``(B) maintain under security procedures approved by the
Attorney General and the Director of National Intelligence any
records concerning the acquisition or the aid furnished that
such electronic communication service provider wishes to
maintain.
``(2) Compensation.--The Government shall compensate, at the
prevailing rate, an electronic communication service provider for
providing information, facilities, or assistance in accordance with
a directive issued pursuant to paragraph (1).
``(3) Release from liability.--No cause of action shall lie in
any court against any electronic communication service provider for
providing any information, facilities, or assistance in accordance
with a directive issued pursuant to paragraph (1).
``(4) Challenging of directives.--
``(A) Authority to challenge.--An electronic communication
service provider receiving a directive issued pursuant to
paragraph (1) may file a petition to modify or set aside such
directive with the Foreign Intelligence Surveillance Court,
which shall have jurisdiction to review such petition.
``(B) Assignment.--The presiding judge of the Court shall
assign a petition filed under subparagraph (A) to 1 of the
judges serving in the pool established under section 103(e)(1)
not later than 24 hours after the filing of such petition.
``(C) Standards for review.--A judge considering a petition
filed under subparagraph (A) may grant such petition only if
the judge finds that the directive does not meet the
requirements of this section, or is otherwise unlawful.
``(D) Procedures for initial review.--A judge shall conduct
an initial review of a petition filed under subparagraph (A)
not later than 5 days after being assigned such petition. If
the judge determines that such petition does not consist of
claims, defenses, or other legal contentions that are warranted
by existing law or by a nonfrivolous argument for extending,
modifying, or reversing existing law or for establishing new
law, the judge shall immediately deny such petition and affirm
the directive or any part of the directive that is the subject
of such petition and order the recipient to comply with the
directive or any part of it. Upon making a determination under
this subparagraph or promptly thereafter, the judge shall
provide a written statement for the record of the reasons for
such determination.
``(E) Procedures for plenary review.--If a judge determines
that a petition filed under subparagraph (A) requires plenary
review, the judge shall affirm, modify, or set aside the
directive that is the subject of such petition not later than
30 days after being assigned such petition. If the judge does
not set aside the directive, the judge shall immediately affirm
or affirm with modifications the directive, and order the
recipient to comply with the directive in its entirety or as
modified. The judge shall provide a written statement for the
record of the reasons for a determination under this
subparagraph.
``(F) Continued effect.--Any directive not explicitly
modified or set aside under this paragraph shall remain in full
effect.
``(G) Contempt of court.--Failure to obey an order issued
under this paragraph may be punished by the Court as contempt
of court.
``(5) Enforcement of directives.--
``(A) Order to compel.--If an electronic communication
service provider fails to comply with a directive issued
pursuant to paragraph (1), the Attorney General may file a
petition for an order to compel the electronic communication
service provider to comply with the directive with the Foreign
Intelligence Surveillance Court, which shall have jurisdiction
to review such petition.
``(B) Assignment.--The presiding judge of the Court shall
assign a petition filed under subparagraph (A) to 1 of the
judges serving in the pool established under section 103(e)(1)
not later than 24 hours after the filing of such petition.
``(C) Procedures for review.--A judge considering a
petition filed under subparagraph (A) shall, not later than 30
days after being assigned such petition, issue an order
requiring the electronic communication service provider to
comply with the directive or any part of it, as issued or as
modified, if the judge finds that the directive meets the
requirements of this section and is otherwise lawful. The judge
shall provide a written statement for the record of the reasons
for a determination under this paragraph.
``(D) Contempt of court.--Failure to obey an order issued
under this paragraph may be punished by the Court as contempt
of court.
``(E) Process.--Any process under this paragraph may be
served in any judicial district in which the electronic
communication service provider may be found.
``(6) Appeal.--
``(A) Appeal to the court of review.--The Government or an
electronic communication service provider receiving a directive
issued pursuant to paragraph (1) may file a petition with the
Foreign Intelligence Surveillance Court of Review for review of
a decision issued pursuant to paragraph (4) or (5). The Court
of Review shall have jurisdiction to consider such petition and
shall provide a written statement for the record of the reasons
for a decision under this subparagraph.
``(B) Certiorari to the supreme court.--The Government or
an electronic communication service provider receiving a
directive issued pursuant to paragraph (1) may file a petition
for a writ of certiorari for review of a decision of the Court
of Review issued under subparagraph (A). The record for such
review shall be transmitted under seal to the Supreme Court of
the United States, which shall have jurisdiction to review such
decision.
``(i) Judicial Review of Certifications and Procedures.--
``(1) In general.--
``(A) Review by the foreign intelligence surveillance
court.--The Foreign Intelligence Surveillance Court shall have
jurisdiction to review a certification submitted in accordance
with subsection (g) and the targeting and minimization
procedures adopted in accordance with subsections (d) and (e),
and amendments to such certification or such procedures.
``(B) Time period for review.--The Court shall review a
certification submitted in accordance with subsection (g) and
the targeting and minimization procedures adopted in accordance
with subsections (d) and (e) and shall complete such review and
issue an order under paragraph (3) not later than 30 days after
the date on which such certification and such procedures are
submitted.
``(C) Amendments.--The Attorney General and the Director of
National Intelligence may amend a certification submitted in
accordance with subsection (g) or the targeting and
minimization procedures adopted in accordance with subsections
(d) and (e) as necessary at any time, including if the Court is
conducting or has completed review of such certification or
such procedures, and shall submit the amended certification or
amended procedures to the Court not later than 7 days after
amending such certification or such procedures. The Court shall
review any amendment under this subparagraph under the
procedures set forth in this subsection. The Attorney General
and the Director of National Intelligence may authorize the use
of an amended certification or amended procedures pending the
Court's review of such amended certification or amended
procedures.
``(2) Review.--The Court shall review the following:
``(A) Certification.--A certification submitted in
accordance with subsection (g) to determine whether the
certification contains all the required elements.
``(B) Targeting procedures.--The targeting procedures
adopted in accordance with subsection (d) to assess whether the
procedures are reasonably designed to--
``(i) ensure that an acquisition authorized under
subsection (a) is limited to targeting persons reasonably
believed to be located outside the United States; and
``(ii) prevent the intentional acquisition of any
communication as to which the sender and all intended
recipients are known at the time of the acquisition to be
located in the United States.
``(C) Minimization procedures.--The minimization procedures
adopted in accordance with subsection (e) to assess whether
such procedures meet the definition of minimization procedures
under section 101(h) or section 301(4), as appropriate.
``(3) Orders.--
``(A) Approval.--If the Court finds that a certification
submitted in accordance with subsection (g) contains all the
required elements and that the targeting and minimization
procedures adopted in accordance with subsections (d) and (e)
are consistent with the requirements of those subsections and
with the fourth amendment to the Constitution of the United
States, the Court shall enter an order approving the
certification and the use, or continued use in the case of an
acquisition authorized pursuant to a determination under
subsection (c)(2), of the procedures for the acquisition.
``(B) Correction of deficiencies.--If the Court finds that
a certification submitted in accordance with subsection (g)
does not contain all the required elements, or that the
procedures adopted in accordance with subsections (d) and (e)
are not consistent with the requirements of those subsections
or the fourth amendment to the Constitution of the United
States, the Court shall issue an order directing the Government
to, at the Government's election and to the extent required by
the Court's order--
``(i) correct any deficiency identified by the Court's
order not later than 30 days after the date on which the
Court issues the order; or
``(ii) cease, or not begin, the implementation of the
authorization for which such certification was submitted.
``(C) Requirement for written statement.--In support of an
order under this subsection, the Court shall provide,
simultaneously with the order, for the record a written
statement of the reasons for the order.
``(4) Appeal.--
``(A) Appeal to the court of review.--The Government may
file a petition with the Foreign Intelligence Surveillance
Court of Review for review of an order under this subsection.
The Court of Review shall have jurisdiction to consider such
petition. For any decision under this subparagraph affirming,
reversing, or modifying an order of the Foreign Intelligence
Surveillance Court, the Court of Review shall provide for the
record a written statement of the reasons for the decision.
``(B) Continuation of acquisition pending rehearing or
appeal.--Any acquisition affected by an order under paragraph
(3)(B) may continue--
``(i) during the pendency of any rehearing of the order
by the Court en banc; and
``(ii) if the Government files a petition for review of
an order under this section, until the Court of Review
enters an order under subparagraph (C).
``(C) Implementation pending appeal.--Not later than 60
days after the filing of a petition for review of an order
under paragraph (3)(B) directing the correction of a
deficiency, the Court of Review shall determine, and enter a
corresponding order regarding, whether all or any part of the
correction order, as issued or modified, shall be implemented
during the pendency of the review.
``(D) Certiorari to the supreme court.--The Government may
file a petition for a writ of certiorari for review of a
decision of the Court of Review issued under subparagraph (A).
The record for such review shall be transmitted under seal to
the Supreme Court of the United States, which shall have
jurisdiction to review such decision.
``(5) Schedule.--
``(A) Reauthorization of authorizations in effect.--If the
Attorney General and the Director of National Intelligence seek
to reauthorize or replace an authorization issued under
subsection (a), the Attorney General and the Director of
National Intelligence shall, to the extent practicable, submit
to the Court the certification prepared in accordance with
subsection (g) and the procedures adopted in accordance with
subsections (d) and (e) at least 30 days prior to the
expiration of such authorization.
``(B) Reauthorization of orders, authorizations, and
directives.--If the Attorney General and the Director of
National Intelligence seek to reauthorize or replace an
authorization issued under subsection (a) by filing a
certification pursuant to subparagraph (A), that authorization,
and any directives issued thereunder and any order related
thereto, shall remain in effect, notwithstanding the expiration
provided for in subsection (a), until the Court issues an order
with respect to such certification under paragraph (3) at which
time the provisions of that paragraph and paragraph (4) shall
apply with respect to such certification.
``(j) Judicial Proceedings.--
``(1) Expedited judicial proceedings.--Judicial proceedings
under this section shall be conducted as expeditiously as possible.
``(2) Time limits.--A time limit for a judicial decision in
this section shall apply unless the Court, the Court of Review, or
any judge of either the Court or the Court of Review, by order for
reasons stated, extends that time as necessary for good cause in a
manner consistent with national security.
``(k) Maintenance and Security of Records and Proceedings.--
``(1) Standards.--The Foreign Intelligence Surveillance Court
shall maintain a record of a proceeding under this section,
including petitions, appeals, orders, and statements of reasons for
a decision, under security measures adopted by the Chief Justice of
the United States, in consultation with the Attorney General and
the Director of National Intelligence.
``(2) Filing and review.--All petitions under this section
shall be filed under seal. In any proceedings under this section,
the Court shall, upon request of the Government, review ex parte
and in camera any Government submission, or portions of a
submission, which may include classified information.
``(3) Retention of records.--The Attorney General and the
Director of National Intelligence shall retain a directive or an
order issued under this section for a period of not less than 10
years from the date on which such directive or such order is
issued.
``(l) Assessments and Reviews.--
``(1) Semiannual assessment.--Not less frequently than once
every 6 months, the Attorney General and Director of National
Intelligence shall assess compliance with the targeting and
minimization procedures adopted in accordance with subsections (d)
and (e) and the guidelines adopted in accordance with subsection
(f) and shall submit each assessment to--
``(A) the Foreign Intelligence Surveillance Court; and
``(B) consistent with the Rules of the House of
Representatives, the Standing Rules of the Senate, and Senate
Resolution 400 of the 94th Congress or any successor Senate
resolution--
``(i) the congressional intelligence committees; and
``(ii) the Committees on the Judiciary of the House of
Representatives and the Senate.
``(2) Agency assessment.--The Inspector General of the
Department of Justice and the Inspector General of each element of
the intelligence community authorized to acquire foreign
intelligence information under subsection (a), with respect to the
department or element of such Inspector General--
``(A) are authorized to review compliance with the
targeting and minimization procedures adopted in accordance
with subsections (d) and (e) and the guidelines adopted in
accordance with subsection (f);
``(B) with respect to acquisitions authorized under
subsection (a), shall review the number of disseminated
intelligence reports containing a reference to a United States-
person identity and the number of United States-person
identities subsequently disseminated by the element concerned
in response to requests for identities that were not referred
to by name or title in the original reporting;
``(C) with respect to acquisitions authorized under
subsection (a), shall review the number of targets that were
later determined to be located in the United States and, to the
extent possible, whether communications of such targets were
reviewed; and
``(D) shall provide each such review to--
``(i) the Attorney General;
``(ii) the Director of National Intelligence; and
``(iii) consistent with the Rules of the House of
Representatives, the Standing Rules of the Senate, and
Senate Resolution 400 of the 94th Congress or any successor
Senate resolution--
``(I) the congressional intelligence committees;
and
``(II) the Committees on the Judiciary of the House
of Representatives and the Senate.
``(3) Annual review.--
``(A) Requirement to conduct.--The head of each element of
the intelligence community conducting an acquisition authorized
under subsection (a) shall conduct an annual review to
determine whether there is reason to believe that foreign
intelligence information has been or will be obtained from the
acquisition. The annual review shall provide, with respect to
acquisitions authorized under subsection (a)--
``(i) an accounting of the number of disseminated
intelligence reports containing a reference to a United
States-person identity;
``(ii) an accounting of the number of United States-
person identities subsequently disseminated by that element
in response to requests for identities that were not
referred to by name or title in the original reporting;
``(iii) the number of targets that were later
determined to be located in the United States and, to the
extent possible, whether communications of such targets
were reviewed; and
``(iv) a description of any procedures developed by the
head of such element of the intelligence community and
approved by the Director of National Intelligence to
assess, in a manner consistent with national security,
operational requirements and the privacy interests of
United States persons, the extent to which the acquisitions
authorized under subsection (a) acquire the communications
of United States persons, and the results of any such
assessment.
``(B) Use of review.--The head of each element of the
intelligence community that conducts an annual review under
subparagraph (A) shall use each such review to evaluate the
adequacy of the minimization procedures utilized by such
element and, as appropriate, the application of the
minimization procedures to a particular acquisition authorized
under subsection (a).
``(C) Provision of review.--The head of each element of the
intelligence community that conducts an annual review under
subparagraph (A) shall provide such review to--
``(i) the Foreign Intelligence Surveillance Court;
``(ii) the Attorney General;
``(iii) the Director of National Intelligence; and
``(iv) consistent with the Rules of the House of
Representatives, the Standing Rules of the Senate, and
Senate Resolution 400 of the 94th Congress or any successor
Senate resolution--
``(I) the congressional intelligence committees;
and
``(II) the Committees on the Judiciary of the House
of Representatives and the Senate.
``SEC. 703. CERTAIN ACQUISITIONS INSIDE THE UNITED STATES TARGETING
UNITED STATES PERSONS OUTSIDE THE UNITED STATES.
``(a) Jurisdiction of the Foreign Intelligence Surveillance
Court.--
``(1) In general.--The Foreign Intelligence Surveillance Court
shall have jurisdiction to review an application and to enter an
order approving the targeting of a United States person reasonably
believed to be located outside the United States to acquire foreign
intelligence information, if the acquisition constitutes electronic
surveillance or the acquisition of stored electronic communications
or stored electronic data that requires an order under this Act,
and such acquisition is conducted within the United States.
``(2) Limitation.--If a United States person targeted under
this subsection is reasonably believed to be located in the United
States during the effective period of an order issued pursuant to
subsection (c), an acquisition targeting such United States person
under this section shall cease unless the targeted United States
person is again reasonably believed to be located outside the
United States while an order issued pursuant to subsection (c) is
in effect. Nothing in this section shall be construed to limit the
authority of the Government to seek an order or authorization
under, or otherwise engage in any activity that is authorized
under, any other title of this Act.
``(b) Application.--
``(1) In general.--Each application for an order under this
section shall be made by a Federal officer in writing upon oath or
affirmation to a judge having jurisdiction under subsection (a)(1).
Each application shall require the approval of the Attorney General
based upon the Attorney General's finding that it satisfies the
criteria and requirements of such application, as set forth in this
section, and shall include--
``(A) the identity of the Federal officer making the
application;
``(B) the identity, if known, or a description of the
United States person who is the target of the acquisition;
``(C) a statement of the facts and circumstances relied
upon to justify the applicant's belief that the United States
person who is the target of the acquisition is--
``(i) a person reasonably believed to be located
outside the United States; and
``(ii) a foreign power, an agent of a foreign power, or
an officer or employee of a foreign power;
``(D) a statement of proposed minimization procedures that
meet the definition of minimization procedures under section
101(h) or 301(4), as appropriate;
``(E) a description of the nature of the information sought
and the type of communications or activities to be subjected to
acquisition;
``(F) a certification made by the Attorney General or an
official specified in section 104(a)(6) that--
``(i) the certifying official deems the information
sought to be foreign intelligence information;
``(ii) a significant purpose of the acquisition is to
obtain foreign intelligence information;
``(iii) such information cannot reasonably be obtained
by normal investigative techniques;
``(iv) designates the type of foreign intelligence
information being sought according to the categories
described in section 101(e); and
``(v) includes a statement of the basis for the
certification that--
``(I) the information sought is the type of foreign
intelligence information designated; and
``(II) such information cannot reasonably be
obtained by normal investigative techniques;
``(G) a summary statement of the means by which the
acquisition will be conducted and whether physical entry is
required to effect the acquisition;
``(H) the identity of any electronic communication service
provider necessary to effect the acquisition, provided that the
application is not required to identify the specific
facilities, places, premises, or property at which the
acquisition authorized under this section will be directed or
conducted;
``(I) a statement of the facts concerning any previous
applications that have been made to any judge of the Foreign
Intelligence Surveillance Court involving the United States
person specified in the application and the action taken on
each previous application; and
``(J) a statement of the period of time for which the
acquisition is required to be maintained, provided that such
period of time shall not exceed 90 days per application.
``(2) Other requirements of the attorney general.--The Attorney
General may require any other affidavit or certification from any
other officer in connection with the application.
``(3) Other requirements of the judge.--The judge may require
the applicant to furnish such other information as may be necessary
to make the findings required by subsection (c)(1).
``(c) Order.--
``(1) Findings.--Upon an application made pursuant to
subsection (b), the Foreign Intelligence Surveillance Court shall
enter an ex parte order as requested or as modified by the Court
approving the acquisition if the Court finds that--
``(A) the application has been made by a Federal officer
and approved by the Attorney General;
``(B) on the basis of the facts submitted by the applicant,
for the United States person who is the target of the
acquisition, there is probable cause to believe that the target
is--
``(i) a person reasonably believed to be located
outside the United States; and
``(ii) a foreign power, an agent of a foreign power, or
an officer or employee of a foreign power;
``(C) the proposed minimization procedures meet the
definition of minimization procedures under section 101(h) or
301(4), as appropriate; and
``(D) the application that has been filed contains all
statements and certifications required by subsection (b) and
the certification or certifications are not clearly erroneous
on the basis of the statement made under subsection
(b)(1)(F)(v) and any other information furnished under
subsection (b)(3).
``(2) Probable cause.--In determining whether or not probable
cause exists for purposes of paragraph (1)(B), a judge having
jurisdiction under subsection (a)(1) may consider past activities
of the target and facts and circumstances relating to current or
future activities of the target. No United States person may be
considered a foreign power, agent of a foreign power, or officer or
employee of a foreign power solely upon the basis of activities
protected by the first amendment to the Constitution of the United
States.
``(3) Review.--
``(A) Limitation on review.--Review by a judge having
jurisdiction under subsection (a)(1) shall be limited to that
required to make the findings described in paragraph (1).
``(B) Review of probable cause.--If the judge determines
that the facts submitted under subsection (b) are insufficient
to establish probable cause under paragraph (1)(B), the judge
shall enter an order so stating and provide a written statement
for the record of the reasons for the determination. The
Government may appeal an order under this subparagraph pursuant
to subsection (f).
``(C) Review of minimization procedures.--If the judge
determines that the proposed minimization procedures referred
to in paragraph (1)(C) do not meet the definition of
minimization procedures under section 101(h) or 301(4), as
appropriate, the judge shall enter an order so stating and
provide a written statement for the record of the reasons for
the determination. The Government may appeal an order under
this subparagraph pursuant to subsection (f).
``(D) Review of certification.--If the judge determines
that an application pursuant to subsection (b) does not contain
all of the required elements, or that the certification or
certifications are clearly erroneous on the basis of the
statement made under subsection (b)(1)(F)(v) and any other
information furnished under subsection (b)(3), the judge shall
enter an order so stating and provide a written statement for
the record of the reasons for the determination. The Government
may appeal an order under this subparagraph pursuant to
subsection (f).
``(4) Specifications.--An order approving an acquisition under
this subsection shall specify--
``(A) the identity, if known, or a description of the
United States person who is the target of the acquisition
identified or described in the application pursuant to
subsection (b)(1)(B);
``(B) if provided in the application pursuant to subsection
(b)(1)(H), the nature and location of each of the facilities or
places at which the acquisition will be directed;
``(C) the nature of the information sought to be acquired
and the type of communications or activities to be subjected to
acquisition;
``(D) a summary of the means by which the acquisition will
be conducted and whether physical entry is required to effect
the acquisition; and
``(E) the period of time during which the acquisition is
approved.
``(5) Directives.--An order approving an acquisition under this
subsection shall direct--
``(A) that the minimization procedures referred to in
paragraph (1)(C), as approved or modified by the Court, be
followed;
``(B) if applicable, an electronic communication service
provider to provide to the Government forthwith all
information, facilities, or assistance necessary to accomplish
the acquisition authorized under such order in a manner that
will protect the secrecy of the acquisition and produce a
minimum of interference with the services that such electronic
communication service provider is providing to the target of
the acquisition;
``(C) if applicable, an electronic communication service
provider to maintain under security procedures approved by the
Attorney General any records concerning the acquisition or the
aid furnished that such electronic communication service
provider wishes to maintain; and
``(D) if applicable, that the Government compensate, at the
prevailing rate, such electronic communication service provider
for providing such information, facilities, or assistance.
``(6) Duration.--An order approved under this subsection shall
be effective for a period not to exceed 90 days and such order may
be renewed for additional 90-day periods upon submission of renewal
applications meeting the requirements of subsection (b).
``(7) Compliance.--At or prior to the end of the period of time
for which an acquisition is approved by an order or extension under
this section, the judge may assess compliance with the minimization
procedures referred to in paragraph (1)(C) by reviewing the
circumstances under which information concerning United States
persons was acquired, retained, or disseminated.
``(d) Emergency Authorization.--
``(1) Authority for emergency authorization.--Notwithstanding
any other provision of this Act, if the Attorney General reasonably
determines that--
``(A) an emergency situation exists with respect to the
acquisition of foreign intelligence information for which an
order may be obtained under subsection (c) before an order
authorizing such acquisition can with due diligence be
obtained, and
``(B) the factual basis for issuance of an order under this
subsection to approve such acquisition exists,
the Attorney General may authorize such acquisition if a judge
having jurisdiction under subsection (a)(1) is informed by the
Attorney General, or a designee of the Attorney General, at the
time of such authorization that the decision has been made to
conduct such acquisition and if an application in accordance with
this section is made to a judge of the Foreign Intelligence
Surveillance Court as soon as practicable, but not more than 7 days
after the Attorney General authorizes such acquisition.
``(2) Minimization procedures.--If the Attorney General
authorizes an acquisition under paragraph (1), the Attorney General
shall require that the minimization procedures referred to in
subsection (c)(1)(C) for the issuance of a judicial order be
followed.
``(3) Termination of emergency authorization.--In the absence
of a judicial order approving an acquisition under paragraph (1),
such acquisition shall terminate when the information sought is
obtained, when the application for the order is denied, or after
the expiration of 7 days from the time of authorization by the
Attorney General, whichever is earliest.
``(4) Use of information.--If an application for approval
submitted pursuant to paragraph (1) is denied, or in any other case
where the acquisition is terminated and no order is issued
approving the acquisition, no information obtained or evidence
derived from such acquisition, except under circumstances in which
the target of the acquisition is determined not to be a United
States person, shall be received in evidence or otherwise disclosed
in any trial, hearing, or other proceeding in or before any court,
grand jury, department, office, agency, regulatory body,
legislative committee, or other authority of the United States, a
State, or political subdivision thereof, and no information
concerning any United States person acquired from such acquisition
shall subsequently be used or disclosed in any other manner by
Federal officers or employees without the consent of such person,
except with the approval of the Attorney General if the information
indicates a threat of death or serious bodily harm to any person.
``(e) Release From Liability.--No cause of action shall lie in any
court against any electronic communication service provider for
providing any information, facilities, or assistance in accordance with
an order or request for emergency assistance issued pursuant to
subsection (c) or (d), respectively.
``(f) Appeal.--
``(1) Appeal to the foreign intelligence surveillance court of
review.--The Government may file a petition with the Foreign
Intelligence Surveillance Court of Review for review of an order
issued pursuant to subsection (c). The Court of Review shall have
jurisdiction to consider such petition and shall provide a written
statement for the record of the reasons for a decision under this
paragraph.
``(2) Certiorari to the supreme court.--The Government may file
a petition for a writ of certiorari for review of a decision of the
Court of Review issued under paragraph (1). The record for such
review shall be transmitted under seal to the Supreme Court of the
United States, which shall have jurisdiction to review such
decision.
``(g) Construction.--Except as provided in this section, nothing in
this Act shall be construed to require an application for a court order
for an acquisition that is targeted in accordance with this section at
a United States person reasonably believed to be located outside the
United States.
``SEC. 704. OTHER ACQUISITIONS TARGETING UNITED STATES PERSONS
OUTSIDE THE UNITED STATES.
``(a) Jurisdiction and Scope.--
``(1) Jurisdiction.--The Foreign Intelligence Surveillance
Court shall have jurisdiction to enter an order pursuant to
subsection (c).
``(2) Scope.--No element of the intelligence community may
intentionally target, for the purpose of acquiring foreign
intelligence information, a United States person reasonably
believed to be located outside the United States under
circumstances in which the targeted United States person has a
reasonable expectation of privacy and a warrant would be required
if the acquisition were conducted inside the United States for law
enforcement purposes, unless a judge of the Foreign Intelligence
Surveillance Court has entered an order with respect to such
targeted United States person or the Attorney General has
authorized an emergency acquisition pursuant to subsection (c) or
(d), respectively, or any other provision of this Act.
``(3) Limitations.--
``(A) Moving or misidentified targets.--If a United States
person targeted under this subsection is reasonably believed to
be located in the United States during the effective period of
an order issued pursuant to subsection (c), an acquisition
targeting such United States person under this section shall
cease unless the targeted United States person is again
reasonably believed to be located outside the United States
during the effective period of such order.
``(B) Applicability.--If an acquisition for foreign
intelligence purposes is to be conducted inside the United
States and could be authorized under section 703, the
acquisition may only be conducted if authorized under section
703 or in accordance with another provision of this Act other
than this section.
``(C) Construction.--Nothing in this paragraph shall be
construed to limit the authority of the Government to seek an
order or authorization under, or otherwise engage in any
activity that is authorized under, any other title of this Act.
``(b) Application.--Each application for an order under this
section shall be made by a Federal officer in writing upon oath or
affirmation to a judge having jurisdiction under subsection (a)(1).
Each application shall require the approval of the Attorney General
based upon the Attorney General's finding that it satisfies the
criteria and requirements of such application as set forth in this
section and shall include--
``(1) the identity of the Federal officer making the
application;
``(2) the identity, if known, or a description of the specific
United States person who is the target of the acquisition;
``(3) a statement of the facts and circumstances relied upon to
justify the applicant's belief that the United States person who is
the target of the acquisition is--
``(A) a person reasonably believed to be located outside
the United States; and
``(B) a foreign power, an agent of a foreign power, or an
officer or employee of a foreign power;
``(4) a statement of proposed minimization procedures that meet
the definition of minimization procedures under section 101(h) or
301(4), as appropriate;
``(5) a certification made by the Attorney General, an official
specified in section 104(a)(6), or the head of an element of the
intelligence community that--
``(A) the certifying official deems the information sought
to be foreign intelligence information; and
``(B) a significant purpose of the acquisition is to obtain
foreign intelligence information;
``(6) a statement of the facts concerning any previous
applications that have been made to any judge of the Foreign
Intelligence Surveillance Court involving the United States person
specified in the application and the action taken on each previous
application; and
``(7) a statement of the period of time for which the
acquisition is required to be maintained, provided that such period
of time shall not exceed 90 days per application.
``(c) Order.--
``(1) Findings.--Upon an application made pursuant to
subsection (b), the Foreign Intelligence Surveillance Court shall
enter an ex parte order as requested or as modified by the Court if
the Court finds that--
``(A) the application has been made by a Federal officer
and approved by the Attorney General;
``(B) on the basis of the facts submitted by the applicant,
for the United States person who is the target of the
acquisition, there is probable cause to believe that the target
is--
``(i) a person reasonably believed to be located
outside the United States; and
``(ii) a foreign power, an agent of a foreign power, or
an officer or employee of a foreign power;
``(C) the proposed minimization procedures, with respect to
their dissemination provisions, meet the definition of
minimization procedures under section 101(h) or 301(4), as
appropriate; and
``(D) the application that has been filed contains all
statements and certifications required by subsection (b) and
the certification provided under subsection (b)(5) is not
clearly erroneous on the basis of the information furnished
under subsection (b).
``(2) Probable cause.--In determining whether or not probable
cause exists for purposes of paragraph (1)(B), a judge having
jurisdiction under subsection (a)(1) may consider past activities
of the target and facts and circumstances relating to current or
future activities of the target. No United States person may be
considered a foreign power, agent of a foreign power, or officer or
employee of a foreign power solely upon the basis of activities
protected by the first amendment to the Constitution of the United
States.
``(3) Review.--
``(A) Limitations on review.--Review by a judge having
jurisdiction under subsection (a)(1) shall be limited to that
required to make the findings described in paragraph (1). The
judge shall not have jurisdiction to review the means by which
an acquisition under this section may be conducted.
``(B) Review of probable cause.--If the judge determines
that the facts submitted under subsection (b) are insufficient
to establish probable cause to issue an order under this
subsection, the judge shall enter an order so stating and
provide a written statement for the record of the reasons for
such determination. The Government may appeal an order under
this subparagraph pursuant to subsection (e).
``(C) Review of minimization procedures.--If the judge
determines that the minimization procedures applicable to
dissemination of information obtained through an acquisition
under this subsection do not meet the definition of
minimization procedures under section 101(h) or 301(4), as
appropriate, the judge shall enter an order so stating and
provide a written statement for the record of the reasons for
such determination. The Government may appeal an order under
this subparagraph pursuant to subsection (e).
``(D) Scope of review of certification.--If the judge
determines that an application under subsection (b) does not
contain all the required elements, or that the certification
provided under subsection (b)(5) is clearly erroneous on the
basis of the information furnished under subsection (b), the
judge shall enter an order so stating and provide a written
statement for the record of the reasons for such determination.
The Government may appeal an order under this subparagraph
pursuant to subsection (e).
``(4) Duration.--An order under this paragraph shall be
effective for a period not to exceed 90 days and such order may be
renewed for additional 90-day periods upon submission of renewal
applications meeting the requirements of subsection (b).
``(5) Compliance.--At or prior to the end of the period of time
for which an order or extension is granted under this section, the
judge may assess compliance with the minimization procedures
referred to in paragraph (1)(C) by reviewing the circumstances
under which information concerning United States persons was
disseminated, provided that the judge may not inquire into the
circumstances relating to the conduct of the acquisition.
``(d) Emergency Authorization.--
``(1) Authority for emergency authorization.--Notwithstanding
any other provision of this section, if the Attorney General
reasonably determines that--
``(A) an emergency situation exists with respect to the
acquisition of foreign intelligence information for which an
order may be obtained under subsection (c) before an order
under that subsection can, with due diligence, be obtained, and
``(B) the factual basis for the issuance of an order under
this section exists,
the Attorney General may authorize the emergency acquisition if a
judge having jurisdiction under subsection (a)(1) is informed by
the Attorney General or a designee of the Attorney General at the
time of such authorization that the decision has been made to
conduct such acquisition and if an application in accordance with
this section is made to a judge of the Foreign Intelligence
Surveillance Court as soon as practicable, but not more than 7 days
after the Attorney General authorizes such acquisition.
``(2) Minimization procedures.--If the Attorney General
authorizes an emergency acquisition under paragraph (1), the
Attorney General shall require that the minimization procedures
referred to in subsection (c)(1)(C) be followed.
``(3) Termination of emergency authorization.--In the absence
of an order under subsection (c), an emergency acquisition under
paragraph (1) shall terminate when the information sought is
obtained, if the application for the order is denied, or after the
expiration of 7 days from the time of authorization by the Attorney
General, whichever is earliest.
``(4) Use of information.--If an application submitted to the
Court pursuant to paragraph (1) is denied, or in any other case
where the acquisition is terminated and no order with respect to
the target of the acquisition is issued under subsection (c), no
information obtained or evidence derived from such acquisition,
except under circumstances in which the target of the acquisition
is determined not to be a United States person, shall be received
in evidence or otherwise disclosed in any trial, hearing, or other
proceeding in or before any court, grand jury, department, office,
agency, regulatory body, legislative committee, or other authority
of the United States, a State, or political subdivision thereof,
and no information concerning any United States person acquired
from such acquisition shall subsequently be used or disclosed in
any other manner by Federal officers or employees without the
consent of such person, except with the approval of the Attorney
General if the information indicates a threat of death or serious
bodily harm to any person.
``(e) Appeal.--
``(1) Appeal to the court of review.--The Government may file a
petition with the Foreign Intelligence Surveillance Court of Review
for review of an order issued pursuant to subsection (c). The Court
of Review shall have jurisdiction to consider such petition and
shall provide a written statement for the record of the reasons for
a decision under this paragraph.
``(2) Certiorari to the supreme court.--The Government may file
a petition for a writ of certiorari for review of a decision of the
Court of Review issued under paragraph (1). The record for such
review shall be transmitted under seal to the Supreme Court of the
United States, which shall have jurisdiction to review such
decision.''
``SEC. 705. JOINT APPLICATIONS AND CONCURRENT AUTHORIZATIONS.
``(a) Joint Applications and Orders.--If an acquisition targeting a
United States person under section 703 or 704 is proposed to be
conducted both inside and outside the United States, a judge having
jurisdiction under section 703(a)(1) or 704(a)(1) may issue
simultaneously, upon the request of the Government in a joint
application complying with the requirements of sections 703(b) and
704(b), orders under sections 703(c) and 704(c), as appropriate.
``(b) Concurrent Authorization.--If an order authorizing electronic
surveillance or physical search has been obtained under section 105 or
304, the Attorney General may authorize, for the effective period of
that order, without an order under section 703 or 704, the targeting of
that United States person for the purpose of acquiring foreign
intelligence information while such person is reasonably believed to be
located outside the United States.
``SEC. 706. USE OF INFORMATION ACQUIRED UNDER TITLE VII.
``(a) Information Acquired Under Section 702.--Information acquired
from an acquisition conducted under section 702 shall be deemed to be
information acquired from an electronic surveillance pursuant to title
I for purposes of section 106, except for the purposes of subsection
(j) of such section.
``(b) Information Acquired Under Section 703.--Information acquired
from an acquisition conducted under section 703 shall be deemed to be
information acquired from an electronic surveillance pursuant to title
I for purposes of section 106.
``SEC. 707. CONGRESSIONAL OVERSIGHT.
``(a) Semiannual Report.--Not less frequently than once every 6
months, the Attorney General shall fully inform, in a manner consistent
with national security, the congressional intelligence committees and
the Committees on the Judiciary of the Senate and the House of
Representatives, consistent with the Rules of the House of
Representatives, the Standing Rules of the Senate, and Senate
Resolution 400 of the 94th Congress or any successor Senate resolution,
concerning the implementation of this title.
``(b) Content.--Each report under subsection (a) shall include--
``(1) with respect to section 702--
``(A) any certifications submitted in accordance with
section 702(g) during the reporting period;
``(B) with respect to each determination under section
702(c)(2), the reasons for exercising the authority under such
section;
``(C) any directives issued under section 702(h) during the
reporting period;
``(D) a description of the judicial review during the
reporting period of such certifications and targeting and
minimization procedures adopted in accordance with subsections
(d) and (e) of section 702 and utilized with respect to an
acquisition under such section, including a copy of an order or
pleading in connection with such review that contains a
significant legal interpretation of the provisions of section
702;
``(E) any actions taken to challenge or enforce a directive
under paragraph (4) or (5) of section 702(h);
``(F) any compliance reviews conducted by the Attorney
General or the Director of National Intelligence of
acquisitions authorized under section 702(a);
``(G) a description of any incidents of noncompliance--
``(i) with a directive issued by the Attorney General
and the Director of National Intelligence under section
702(h), including incidents of noncompliance by a specified
person to whom the Attorney General and Director of
National Intelligence issued a directive under section
702(h); and
``(ii) by an element of the intelligence community with
procedures and guidelines adopted in accordance with
subsections (d), (e), and (f) of section 702; and
``(H) any procedures implementing section 702;
``(2) with respect to section 703--
``(A) the total number of applications made for orders
under section 703(b);
``(B) the total number of such orders--
``(i) granted;
``(ii) modified; and
``(iii) denied; and
``(C) the total number of emergency acquisitions authorized
by the Attorney General under section 703(d) and the total
number of subsequent orders approving or denying such
acquisitions; and
``(3) with respect to section 704--
``(A) the total number of applications made for orders
under section 704(b);
``(B) the total number of such orders--
``(i) granted;
``(ii) modified; and
``(iii) denied; and
``(C) the total number of emergency acquisitions authorized
by the Attorney General under section 704(d) and the total
number of subsequent orders approving or denying such
applications.
``SEC. 708. SAVINGS PROVISION.
``Nothing in this title shall be construed to limit the authority
of the Government to seek an order or authorization under, or otherwise
engage in any activity that is authorized under, any other title of
this Act.''.
(b) Table of Contents.--The table of contents in the first section
of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.) is amended--
(1) by striking the item relating to title VII;
(2) by striking the item relating to section 701; and
(3) by adding at the end the following:
``TITLE VII--ADDITIONAL PROCEDURES REGARDING CERTAIN PERSONS OUTSIDE THE
UNITED STATES
``Sec. 701. Definitions.
``Sec. 702. Procedures for targeting certain persons outside the United
States other than United States persons.
``Sec. 703. Certain acquisitions inside the United States targeting
United States persons outside the United States.
``Sec. 704. Other acquisitions targeting United States persons outside
the United States.
``Sec. 705. Joint applications and concurrent authorizations.
``Sec. 706. Use of information acquired under title VII.
``Sec. 707. Congressional oversight.
``Sec. 708. Savings provision.''.
(c) Technical and Conforming Amendments.--
(1) Title 18, united states code.--Section 2511(2)(a)(ii)(A) of
title 18, United States Code, is amended by inserting ``or a court
order pursuant to section 704 of the Foreign Intelligence
Surveillance Act of 1978'' after ``assistance''.
(2) Foreign intelligence surveillance act of 1978.--Section
601(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1871(a)(1)) is amended--
(A) in subparagraph (C), by striking ``and''; and
(B) by adding at the end the following new subparagraphs:
``(E) acquisitions under section 703; and
``(F) acquisitions under section 704;''.
SEC. 102. STATEMENT OF EXCLUSIVE MEANS BY WHICH ELECTRONIC
SURVEILLANCE AND INTERCEPTION OF CERTAIN COMMUNICATIONS MAY BE
CONDUCTED.
(a) Statement of Exclusive Means.--Title I of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is
amended by adding at the end the following new section:
``statement of exclusive means by which electronic surveillance and
interception of certain communications may be conducted
``Sec. 112. (a) Except as provided in subsection (b), the
procedures of chapters 119, 121, and 206 of title 18, United States
Code, and this Act shall be the exclusive means by which electronic
surveillance and the interception of domestic wire, oral, or electronic
communications may be conducted.
``(b) Only an express statutory authorization for electronic
surveillance or the interception of domestic wire, oral, or electronic
communications, other than as an amendment to this Act or chapters 119,
121, or 206 of title 18, United States Code, shall constitute an
additional exclusive means for the purpose of subsection (a).''.
(b) Offense.--Section 109(a) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1809(a)) is amended by striking
``authorized by statute'' each place it appears and inserting
``authorized by this Act, chapter 119, 121, or 206 of title 18, United
States Code, or any express statutory authorization that is an
additional exclusive means for conducting electronic surveillance under
section 112.''; and
(c) Conforming Amendments.--
(1) Title 18, united states code.--Section 2511(2)(a) of title
18, United States Code, is amended by adding at the end the
following:
``(iii) If a certification under subparagraph (ii)(B)
for assistance to obtain foreign intelligence information
is based on statutory authority, the certification shall
identify the specific statutory provision and shall certify
that the statutory requirements have been met.''; and
(2) Table of contents.--The table of contents in the first
section of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.) is amended by inserting after the item
relating to section 111, the following new item:
``Sec. 112. Statement of exclusive means by which electronic
surveillance and interception of certain communications may be
conducted.''.
SEC. 103. SUBMITTAL TO CONGRESS OF CERTAIN COURT ORDERS UNDER THE
FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.
(a) Inclusion of Certain Orders in Semiannual Reports of Attorney
General.--Subsection (a)(5) of section 601 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1871) is amended by striking ``(not
including orders)'' and inserting ``, orders,''.
(b) Reports by Attorney General on Certain Other Orders.--Such
section 601 is further amended by adding at the end the following:
``(c) Submissions to Congress.--The Attorney General shall submit
to the committees of Congress referred to in subsection (a)--
``(1) a copy of any decision, order, or opinion issued by the
Foreign Intelligence Surveillance Court or the Foreign Intelligence
Surveillance Court of Review that includes significant construction
or interpretation of any provision of this Act, and any pleadings,
applications, or memoranda of law associated with such decision,
order, or opinion, not later than 45 days after such decision,
order, or opinion is issued; and
``(2) a copy of each such decision, order, or opinion, and any
pleadings, applications, or memoranda of law associated with such
decision, order, or opinion, that was issued during the 5-year
period ending on the date of the enactment of the FISA Amendments
Act of 2008 and not previously submitted in a report under
subsection (a).
``(d) Protection of National Security.--The Attorney General, in
consultation with the Director of National Intelligence, may authorize
redactions of materials described in subsection (c) that are provided
to the committees of Congress referred to in subsection (a), if such
redactions are necessary to protect the national security of the United
States and are limited to sensitive sources and methods information or
the identities of targets.''.
(c) Definitions.--Such section 601, as amended by subsections (a)
and (b), is further amended by adding at the end the following:
``(e) Definitions.--In this section:
``(1) Foreign intelligence surveillance court.--The term
`Foreign Intelligence Surveillance Court' means the court
established under section 103(a).
``(2) Foreign intelligence surveillance court of review.--The
term `Foreign Intelligence Surveillance Court of Review' means the
court established under section 103(b).''.
SEC. 104. APPLICATIONS FOR COURT ORDERS.
Section 104 of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1804) is amended--
(1) in subsection (a)--
(A) by striking paragraphs (2) and (11);
(B) by redesignating paragraphs (3) through (10) as
paragraphs (2) through (9), respectively;
(C) in paragraph (5), as redesignated by subparagraph (B)
of this paragraph, by striking ``detailed'';
(D) in paragraph (6), as redesignated by subparagraph (B)
of this paragraph, in the matter preceding subparagraph (A)--
(i) by striking ``Affairs or'' and inserting
``Affairs,''; and
(ii) by striking ``Senate--'' and inserting ``Senate,
or the Deputy Director of the Federal Bureau of
Investigation, if designated by the President as a
certifying official--'';
(E) in paragraph (7), as redesignated by subparagraph (B)
of this paragraph, by striking ``statement of'' and inserting
``summary statement of'';
(F) in paragraph (8), as redesignated by subparagraph (B)
of this paragraph, by adding ``and'' at the end; and
(G) in paragraph (9), as redesignated by subparagraph (B)
of this paragraph, by striking ``; and'' and inserting a
period;
(2) by striking subsection (b);
(3) by redesignating subsections (c) through (e) as subsections
(b) through (d), respectively; and
(4) in paragraph (1)(A) of subsection (d), as redesignated by
paragraph (3) of this subsection, by striking ``or the Director of
National Intelligence'' and inserting ``the Director of National
Intelligence, or the Director of the Central Intelligence Agency''.
SEC. 105. ISSUANCE OF AN ORDER.
(a) In General.--Section 105 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1805) is amended--
(1) in subsection (a)--
(A) by striking paragraph (1); and
(B) by redesignating paragraphs (2) through (5) as
paragraphs (1) through (4), respectively;
(2) in subsection (b), by striking ``(a)(3)'' and inserting
``(a)(2)'';
(3) in subsection (c)(1)--
(A) in subparagraph (D), by adding ``and'' at the end;
(B) in subparagraph (E), by striking ``; and'' and
inserting a period; and
(C) by striking subparagraph (F);
(4) by striking subsection (d);
(5) by redesignating subsections (e) through (i) as subsections
(d) through (h), respectively;
(6) by amending subsection (e), as redesignated by paragraph
(5) of this section, to read as follows:
``(e)(1) Notwithstanding any other provision of this title, the
Attorney General may authorize the emergency employment of electronic
surveillance if the Attorney General--
``(A) reasonably determines that an emergency situation exists
with respect to the employment of electronic surveillance to obtain
foreign intelligence information before an order authorizing such
surveillance can with due diligence be obtained;
``(B) reasonably determines that the factual basis for the
issuance of an order under this title to approve such electronic
surveillance exists;
``(C) informs, either personally or through a designee, a judge
having jurisdiction under section 103 at the time of such
authorization that the decision has been made to employ emergency
electronic surveillance; and
``(D) makes an application in accordance with this title to a
judge having jurisdiction under section 103 as soon as practicable,
but not later than 7 days after the Attorney General authorizes
such surveillance.
``(2) If the Attorney General authorizes the emergency employment
of electronic surveillance under paragraph (1), the Attorney General
shall require that the minimization procedures required by this title
for the issuance of a judicial order be followed.
``(3) In the absence of a judicial order approving such electronic
surveillance, the surveillance shall terminate when the information
sought is obtained, when the application for the order is denied, or
after the expiration of 7 days from the time of authorization by the
Attorney General, whichever is earliest.
``(4) A denial of the application made under this subsection may be
reviewed as provided in section 103.
``(5) In the event that such application for approval is denied, or
in any other case where the electronic surveillance is terminated and
no order is issued approving the surveillance, no information obtained
or evidence derived from such surveillance shall be received in
evidence or otherwise disclosed in any trial, hearing, or other
proceeding in or before any court, grand jury, department, office,
agency, regulatory body, legislative committee, or other authority of
the United States, a State, or political subdivision thereof, and no
information concerning any United States person acquired from such
surveillance shall subsequently be used or disclosed in any other
manner by Federal officers or employees without the consent of such
person, except with the approval of the Attorney General if the
information indicates a threat of death or serious bodily harm to any
person.
``(6) The Attorney General shall assess compliance with the
requirements of paragraph (5).''; and
(7) by adding at the end the following:
``(i) In any case in which the Government makes an application to a
judge under this title to conduct electronic surveillance involving
communications and the judge grants such application, upon the request
of the applicant, the judge shall also authorize the installation and
use of pen registers and trap and trace devices, and direct the
disclosure of the information set forth in section 402(d)(2).''.
(b) Conforming Amendment.--Section 108(a)(2)(C) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1808(a)(2)(C)) is
amended by striking ``105(f)'' and inserting ``105(e)'';
SEC. 106. USE OF INFORMATION.
Subsection (i) of section 106 of the Foreign Intelligence
Surveillance Act of 1978 (8 U.S.C. 1806) is amended by striking ``radio
communication'' and inserting ``communication''.
SEC. 107. AMENDMENTS FOR PHYSICAL SEARCHES.
(a) Applications.--Section 303 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1823) is amended--
(1) in subsection (a)--
(A) by striking paragraph (2);
(B) by redesignating paragraphs (3) through (9) as
paragraphs (2) through (8), respectively;
(C) in paragraph (2), as redesignated by subparagraph (B)
of this paragraph, by striking ``detailed'';
(D) in paragraph (3)(C), as redesignated by subparagraph
(B) of this paragraph, by inserting ``or is about to be''
before ``owned''; and
(E) in paragraph (6), as redesignated by subparagraph (B)
of this paragraph, in the matter preceding subparagraph (A)--
(i) by striking ``Affairs or'' and inserting
``Affairs,''; and
(ii) by striking ``Senate--'' and inserting ``Senate,
or the Deputy Director of the Federal Bureau of
Investigation, if designated by the President as a
certifying official--''; and
(2) in subsection (d)(1)(A), by striking ``or the Director of
National Intelligence'' and inserting ``the Director of National
Intelligence, or the Director of the Central Intelligence Agency''.
(b) Orders.--Section 304 of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1824) is amended--
(1) in subsection (a)--
(A) by striking paragraph (1);
(B) by redesignating paragraphs (2) through (5) as
paragraphs (1) through (4), respectively; and
(C) in paragraph (2)(B), as redesignated by subparagraph
(B) of this paragraph, by inserting ``or is about to be''
before ``owned''; and
(2) by amending subsection (e) to read as follows:
``(e)(1) Notwithstanding any other provision of this title, the
Attorney General may authorize the emergency employment of a physical
search if the Attorney General--
``(A) reasonably determines that an emergency situation exists
with respect to the employment of a physical search to obtain
foreign intelligence information before an order authorizing such
physical search can with due diligence be obtained;
``(B) reasonably determines that the factual basis for issuance
of an order under this title to approve such physical search
exists;
``(C) informs, either personally or through a designee, a judge
of the Foreign Intelligence Surveillance Court at the time of such
authorization that the decision has been made to employ an
emergency physical search; and
``(D) makes an application in accordance with this title to a
judge of the Foreign Intelligence Surveillance Court as soon as
practicable, but not more than 7 days after the Attorney General
authorizes such physical search.
``(2) If the Attorney General authorizes the emergency employment
of a physical search under paragraph (1), the Attorney General shall
require that the minimization procedures required by this title for the
issuance of a judicial order be followed.
``(3) In the absence of a judicial order approving such physical
search, the physical search shall terminate when the information sought
is obtained, when the application for the order is denied, or after the
expiration of 7 days from the time of authorization by the Attorney
General, whichever is earliest.
``(4) A denial of the application made under this subsection may be
reviewed as provided in section 103.
``(5) In the event that such application for approval is denied, or
in any other case where the physical search is terminated and no order
is issued approving the physical search, no information obtained or
evidence derived from such physical search shall be received in
evidence or otherwise disclosed in any trial, hearing, or other
proceeding in or before any court, grand jury, department, office,
agency, regulatory body, legislative committee, or other authority of
the United States, a State, or political subdivision thereof, and no
information concerning any United States person acquired from such
physical search shall subsequently be used or disclosed in any other
manner by Federal officers or employees without the consent of such
person, except with the approval of the Attorney General if the
information indicates a threat of death or serious bodily harm to any
person.
``(6) The Attorney General shall assess compliance with the
requirements of paragraph (5).''.
(c) Conforming Amendments.--The Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1801 et seq.) is amended--
(1) in section 304(a)(4), as redesignated by subsection (b) of
this section, by striking ``303(a)(7)(E)'' and inserting
``303(a)(6)(E)''; and
(2) in section 305(k)(2), by striking ``303(a)(7)'' and
inserting ``303(a)(6)''.
SEC. 108. AMENDMENTS FOR EMERGENCY PEN REGISTERS AND TRAP AND TRACE
DEVICES.
Section 403 of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1843) is amended--
(1) in subsection (a)(2), by striking ``48 hours'' and
inserting ``7 days''; and
(2) in subsection (c)(1)(C), by striking ``48 hours'' and
inserting ``7 days''.
SEC. 109. FOREIGN INTELLIGENCE SURVEILLANCE COURT.
(a) Designation of Judges.--Subsection (a) of section 103 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803) is
amended by inserting ``at least'' before ``seven of the United States
judicial circuits''.
(b) En Banc Authority.--
(1) In general.--Subsection (a) of section 103 of the Foreign
Intelligence Surveillance Act of 1978, as amended by subsection (a)
of this section, is further amended--
(A) by inserting ``(1)'' after ``(a)''; and
(B) by adding at the end the following new paragraph:
``(2)(A) The court established under this subsection may, on its
own initiative, or upon the request of the Government in any proceeding
or a party under section 501(f) or paragraph (4) or (5) of section
702(h), hold a hearing or rehearing, en banc, when ordered by a
majority of the judges that constitute such court upon a determination
that--
``(i) en banc consideration is necessary to secure or maintain
uniformity of the court's decisions; or
``(ii) the proceeding involves a question of exceptional
importance.
``(B) Any authority granted by this Act to a judge of the court
established under this subsection may be exercised by the court en
banc. When exercising such authority, the court en banc shall comply
with any requirements of this Act on the exercise of such authority.
``(C) For purposes of this paragraph, the court en banc shall
consist of all judges who constitute the court established under this
subsection.''.
(2) Conforming amendments.--The Foreign Intelligence
Surveillance Act of 1978 is further amended--
(A) in subsection (a) of section 103, as amended by this
subsection, by inserting ``(except when sitting en banc under
paragraph (2))'' after ``no judge designated under this
subsection''; and
(B) in section 302(c) (50 U.S.C. 1822(c)), by inserting
``(except when sitting en banc)'' after ``except that no
judge''.
(c) Stay or Modification During an Appeal.--Section 103 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803) is
amended--
(1) by redesignating subsection (f) as subsection (g); and
(2) by inserting after subsection (e) the following new
subsection:
``(f)(1) A judge of the court established under subsection (a), the
court established under subsection (b) or a judge of that court, or the
Supreme Court of the United States or a justice of that court, may, in
accordance with the rules of their respective courts, enter a stay of
an order or an order modifying an order of the court established under
subsection (a) or the court established under subsection (b) entered
under any title of this Act, while the court established under
subsection (a) conducts a rehearing, while an appeal is pending to the
court established under subsection (b), or while a petition of
certiorari is pending in the Supreme Court of the United States, or
during the pendency of any review by that court.
``(2) The authority described in paragraph (1) shall apply to an
order entered under any provision of this Act.''.
(d) Authority of Foreign Intelligence Surveillance Court.--Section
103 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1803), as amended by this Act, is amended by adding at the end the
following:
``(i) Nothing in this Act shall be construed to reduce or
contravene the inherent authority of the court established under
subsection (a) to determine or enforce compliance with an order or a
rule of such court or with a procedure approved by such court.''.
SEC. 110. WEAPONS OF MASS DESTRUCTION.
(a) Definitions.--
(1) Foreign power.--Subsection (a) of section 101 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(a))
is amended--
(A) in paragraph (5), by striking ``persons; or'' and
inserting ``persons;'';
(B) in paragraph (6) by striking the period and inserting
``; or''; and
(C) by adding at the end the following new paragraph:
``(7) an entity not substantially composed of United States
persons that is engaged in the international proliferation of
weapons of mass destruction.''.
(2) Agent of a foreign power.--Subsection (b)(1) of such
section 101 is amended--
(A) in subparagraph (B), by striking ``or'' at the end;
(B) in subparagraph (C), by striking ``or'' at the end; and
(C) by adding at the end the following new subparagraphs:
``(D) engages in the international proliferation of weapons
of mass destruction, or activities in preparation therefor; or
``(E) engages in the international proliferation of weapons
of mass destruction, or activities in preparation therefor for
or on behalf of a foreign power; or''.
(3) Foreign intelligence information.--Subsection (e)(1)(B) of
such section 101 is amended by striking ``sabotage or international
terrorism'' and inserting ``sabotage, international terrorism, or
the international proliferation of weapons of mass destruction''.
(4) Weapon of mass destruction.--Such section 101 is amended by
adding at the end the following new subsection:
``(p) `Weapon of mass destruction' means--
``(1) any explosive, incendiary, or poison gas device that is
designed, intended, or has the capability to cause a mass casualty
incident;
``(2) any weapon that is designed, intended, or has the
capability to cause death or serious bodily injury to a significant
number of persons through the release, dissemination, or impact of
toxic or poisonous chemicals or their precursors;
``(3) any weapon involving a biological agent, toxin, or vector
(as such terms are defined in section 178 of title 18, United
States Code) that is designed, intended, or has the capability to
cause death, illness, or serious bodily injury to a significant
number of persons; or
``(4) any weapon that is designed, intended, or has the
capability to release radiation or radioactivity causing death,
illness, or serious bodily injury to a significant number of
persons.''.
(b) Use of Information.--
(1) In general.--Section 106(k)(1)(B) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1806(k)(1)(B)) is
amended by striking ``sabotage or international terrorism'' and
inserting ``sabotage, international terrorism, or the international
proliferation of weapons of mass destruction''.
(2) Physical searches.--Section 305(k)(1)(B) of such Act (50
U.S.C. 1825(k)(1)(B)) is amended by striking ``sabotage or
international terrorism'' and inserting ``sabotage, international
terrorism, or the international proliferation of weapons of mass
destruction''.
(c) Technical and Conforming Amendments.--The Foreign Intelligence
Surveillance Act of 1978 is further amended--
(1) in paragraph (2) of section 105(d) (50 U.S.C. 1805(d)), as
redesignated by section 105(a)(5) of this Act, by striking
``section 101(a) (5) or (6)'' and inserting ``paragraph (5), (6),
or (7) of section 101(a)'';
(2) in section 301(1) (50 U.S.C. 1821(1)), by inserting
``weapon of mass destruction,'' after ``person,''; and
(3) in section 304(d)(2) (50 U.S.C. 1824(d)(2)), by striking
``section 101(a) (5) or (6)'' and inserting ``paragraph (5), (6),
or (7) of section 101(a)''.
TITLE II--PROTECTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS
SEC. 201. PROCEDURES FOR IMPLEMENTING STATUTORY DEFENSES UNDER THE
FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.
The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801
et seq.), as amended by section 101, is further amended by adding at
the end the following new title:
``TITLE VIII--PROTECTION OF PERSONS ASSISTING THE GOVERNMENT
``SEC. 801. DEFINITIONS.
``In this title:
``(1) Assistance.--The term `assistance' means the provision
of, or the provision of access to, information (including
communication contents, communications records, or other
information relating to a customer or communication), facilities,
or another form of assistance.
``(2) Civil action.--The term `civil action' includes a covered
civil action.
``(3) Congressional intelligence committees.--The term
`congressional intelligence committees' means--
``(A) the Select Committee on Intelligence of the Senate;
and
``(B) the Permanent Select Committee on Intelligence of the
House of Representatives.
``(4) Contents.--The term `contents' has the meaning given that
term in section 101(n).
``(5) Covered civil action.--The term `covered civil action'
means a civil action filed in a Federal or State court that--
``(A) alleges that an electronic communication service
provider furnished assistance to an element of the intelligence
community; and
``(B) seeks monetary or other relief from the electronic
communication service provider related to the provision of such
assistance.
``(6) Electronic communication service provider.--The term
`electronic communication service provider' means--
``(A) a telecommunications carrier, as that term is defined
in section 3 of the Communications Act of 1934 (47 U.S.C. 153);
``(B) a provider of electronic communication service, as
that term is defined in section 2510 of title 18, United States
Code;
``(C) a provider of a remote computing service, as that
term is defined in section 2711 of title 18, United States
Code;
``(D) any other communication service provider who has
access to wire or electronic communications either as such
communications are transmitted or as such communications are
stored;
``(E) a parent, subsidiary, affiliate, successor, or
assignee of an entity described in subparagraph (A), (B), (C),
or (D); or
``(F) an officer, employee, or agent of an entity described
in subparagraph (A), (B), (C), (D), or (E).
``(7) Intelligence community.--The term `intelligence
community' has the meaning given the term in section 3(4) of the
National Security Act of 1947 (50 U.S.C. 401a(4)).
``(8) Person.--The term `person' means--
``(A) an electronic communication service provider; or
``(B) a landlord, custodian, or other person who may be
authorized or required to furnish assistance pursuant to--
``(i) an order of the court established under section
103(a) directing such assistance;
``(ii) a certification in writing under section
2511(2)(a)(ii)(B) or 2709(b) of title 18, United States
Code; or
``(iii) a directive under section 102(a)(4), 105B(e),
as added by section 2 of the Protect America Act of 2007
(Public Law 110-55), or 702(h).
``(9) State.--The term `State' means any State, political
subdivision of a State, the Commonwealth of Puerto Rico, the
District of Columbia, and any territory or possession of the United
States, and includes any officer, public utility commission, or
other body authorized to regulate an electronic communication
service provider.
``SEC. 802. PROCEDURES FOR IMPLEMENTING STATUTORY DEFENSES.
``(a) Requirement for Certification.--Notwithstanding any other
provision of law, a civil action may not lie or be maintained in a
Federal or State court against any person for providing assistance to
an element of the intelligence community, and shall be promptly
dismissed, if the Attorney General certifies to the district court of
the United States in which such action is pending that--
``(1) any assistance by that person was provided pursuant to an
order of the court established under section 103(a) directing such
assistance;
``(2) any assistance by that person was provided pursuant to a
certification in writing under section 2511(2)(a)(ii)(B) or 2709(b)
of title 18, United States Code;
``(3) any assistance by that person was provided pursuant to a
directive under section 102(a)(4), 105B(e), as added by section 2
of the Protect America Act of 2007 (Public Law 110-55), or 702(h)
directing such assistance;
``(4) in the case of a covered civil action, the assistance
alleged to have been provided by the electronic communication
service provider was--
``(A) in connection with an intelligence activity involving
communications that was--
``(i) authorized by the President during the period
beginning on September 11, 2001, and ending on January 17,
2007; and
``(ii) designed to detect or prevent a terrorist
attack, or activities in preparation for a terrorist
attack, against the United States; and
``(B) the subject of a written request or directive, or a
series of written requests or directives, from the Attorney
General or the head of an element of the intelligence community
(or the deputy of such person) to the electronic communication
service provider indicating that the activity was--
``(i) authorized by the President; and
``(ii) determined to be lawful; or
``(5) the person did not provide the alleged assistance.
``(b) Judicial Review.--
``(1) Review of certifications.--A certification under
subsection (a) shall be given effect unless the court finds that
such certification is not supported by substantial evidence
provided to the court pursuant to this section.
``(2) Supplemental materials.--In its review of a certification
under subsection (a), the court may examine the court order,
certification, written request, or directive described in
subsection (a) and any relevant court order, certification, written
request, or directive submitted pursuant to subsection (d).
``(c) Limitations on Disclosure.--If the Attorney General files a
declaration under section 1746 of title 28, United States Code, that
disclosure of a certification made pursuant to subsection (a) or the
supplemental materials provided pursuant to subsection (b) or (d) would
harm the national security of the United States, the court shall--
``(1) review such certification and the supplemental materials
in camera and ex parte; and
``(2) limit any public disclosure concerning such certification
and the supplemental materials, including any public order
following such in camera and ex parte review, to a statement as to
whether the case is dismissed and a description of the legal
standards that govern the order, without disclosing the paragraph
of subsection (a) that is the basis for the certification.
``(d) Role of the Parties.--Any plaintiff or defendant in a civil
action may submit any relevant court order, certification, written
request, or directive to the district court referred to in subsection
(a) for review and shall be permitted to participate in the briefing or
argument of any legal issue in a judicial proceeding conducted pursuant
to this section, but only to the extent that such participation does
not require the disclosure of classified information to such party. To
the extent that classified information is relevant to the proceeding or
would be revealed in the determination of an issue, the court shall
review such information in camera and ex parte, and shall issue any
part of the court's written order that would reveal classified
information in camera and ex parte and maintain such part under seal.
``(e) Nondelegation.--The authority and duties of the Attorney
General under this section shall be performed by the Attorney General
(or Acting Attorney General) or the Deputy Attorney General.
``(f) Appeal.--The courts of appeals shall have jurisdiction of
appeals from interlocutory orders of the district courts of the United
States granting or denying a motion to dismiss or for summary judgment
under this section.
``(g) Removal.--A civil action against a person for providing
assistance to an element of the intelligence community that is brought
in a State court shall be deemed to arise under the Constitution and
laws of the United States and shall be removable under section 1441 of
title 28, United States Code.
``(h) Relationship to Other Laws.--Nothing in this section shall be
construed to limit any otherwise available immunity, privilege, or
defense under any other provision of law.
``(i) Applicability.--This section shall apply to a civil action
pending on or filed after the date of the enactment of the FISA
Amendments Act of 2008.
``SEC. 803. PREEMPTION.
``(a) In General.--No State shall have authority to--
``(1) conduct an investigation into an electronic communication
service provider's alleged assistance to an element of the
intelligence community;
``(2) require through regulation or any other means the
disclosure of information about an electronic communication service
provider's alleged assistance to an element of the intelligence
community;
``(3) impose any administrative sanction on an electronic
communication service provider for assistance to an element of the
intelligence community; or
``(4) commence or maintain a civil action or other proceeding
to enforce a requirement that an electronic communication service
provider disclose information concerning alleged assistance to an
element of the intelligence community.
``(b) Suits by the United States.--The United States may bring suit
to enforce the provisions of this section.
``(c) Jurisdiction.--The district courts of the United States shall
have jurisdiction over any civil action brought by the United States to
enforce the provisions of this section.
``(d) Application.--This section shall apply to any investigation,
action, or proceeding that is pending on or commenced after the date of
the enactment of the FISA Amendments Act of 2008.
``SEC. 804. REPORTING.
``(a) Semiannual Report.--Not less frequently than once every 6
months, the Attorney General shall, in a manner consistent with
national security, the Rules of the House of Representatives, the
Standing Rules of the Senate, and Senate Resolution 400 of the 94th
Congress or any successor Senate resolution, fully inform the
congressional intelligence committees, the Committee on the Judiciary
of the Senate, and the Committee on the Judiciary of the House of
Representatives concerning the implementation of this title.
``(b) Content.--Each report made under subsection (a) shall
include--
``(1) any certifications made under section 802;
``(2) a description of the judicial review of the
certifications made under section 802; and
``(3) any actions taken to enforce the provisions of section
803.''.
SEC. 202. TECHNICAL AMENDMENTS.
The table of contents in the first section of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), as
amended by section 101(b), is further amended by adding at the end the
following:
``TITLE VIII--PROTECTION OF PERSONS ASSISTING THE GOVERNMENT
``Sec. 801. Definitions.
``Sec. 802. Procedures for implementing statutory defenses.
``Sec. 803. Preemption.
``Sec. 804. Reporting.''.
TITLE III--REVIEW OF PREVIOUS ACTIONS
SEC. 301. REVIEW OF PREVIOUS ACTIONS.
(a) Definitions.--In this section:
(1) Appropriate committees of congress.--The term ``appropriate
committees of Congress'' means--
(A) the Select Committee on Intelligence and the Committee
on the Judiciary of the Senate; and
(B) the Permanent Select Committee on Intelligence and the
Committee on the Judiciary of the House of Representatives.
(2) Foreign intelligence surveillance court.--The term
``Foreign Intelligence Surveillance Court'' means the court
established under section 103(a) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1803(a)).
(3) President's surveillance program and program.--The terms
``President's Surveillance Program'' and ``Program'' mean the
intelligence activity involving communications that was authorized
by the President during the period beginning on September 11, 2001,
and ending on January 17, 2007, including the program referred to
by the President in a radio address on December 17, 2005 (commonly
known as the Terrorist Surveillance Program).
(b) Reviews.--
(1) Requirement to conduct.--The Inspectors General of the
Department of Justice, the Office of the Director of National
Intelligence, the National Security Agency, the Department of
Defense, and any other element of the intelligence community that
participated in the President's Surveillance Program, shall
complete a comprehensive review of, with respect to the oversight
authority and responsibility of each such Inspector General--
(A) all of the facts necessary to describe the
establishment, implementation, product, and use of the product
of the Program;
(B) access to legal reviews of the Program and access to
information about the Program;
(C) communications with, and participation of, individuals
and entities in the private sector related to the Program;
(D) interaction with the Foreign Intelligence Surveillance
Court and transition to court orders related to the Program;
and
(E) any other matters identified by any such Inspector
General that would enable that Inspector General to complete a
review of the Program, with respect to such Department or
element.
(2) Cooperation and coordination.--
(A) Cooperation.--Each Inspector General required to
conduct a review under paragraph (1) shall--
(i) work in conjunction, to the extent practicable,
with any other Inspector General required to conduct such a
review; and
(ii) utilize, to the extent practicable, and not
unnecessarily duplicate or delay, such reviews or audits
that have been completed or are being undertaken by any
such Inspector General or by any other office of the
Executive Branch related to the Program.
(B) Integration of other reviews.--The Counsel of the
Office of Professional Responsibility of the Department of
Justice shall provide the report of any investigation conducted
by such Office on matters relating to the Program, including
any investigation of the process through which legal reviews of
the Program were conducted and the substance of such reviews,
to the Inspector General of the Department of Justice, who
shall integrate the factual findings and conclusions of such
investigation into its review.
(C) Coordination.--The Inspectors General shall designate
one of the Inspectors General required to conduct a review
under paragraph (1) that is appointed by the President, by and
with the advice and consent of the Senate, to coordinate the
conduct of the reviews and the preparation of the reports.
(c) Reports.--
(1) Preliminary reports.--Not later than 60 days after the date
of the enactment of this Act, the Inspectors General of the
Department of Justice, the Office of the Director of National
Intelligence, the National Security Agency, the Department of
Defense, and any other Inspector General required to conduct a
review under subsection (b)(1), shall submit to the appropriate
committees of Congress an interim report that describes the planned
scope of such review.
(2) Final report.--Not later than 1 year after the date of the
enactment of this Act, the Inspectors General of the Department of
Justice, the Office of the Director of National Intelligence, the
National Security Agency, the Department of Defense, and any other
Inspector General required to conduct a review under subsection
(b)(1), shall submit to the appropriate committees of Congress, in
a manner consistent with national security, a comprehensive report
on such reviews that includes any recommendations of any such
Inspectors General within the oversight authority and
responsibility of any such Inspector General with respect to the
reviews.
(3) Form.--A report under this subsection shall be submitted in
unclassified form, but may include a classified annex. The
unclassified report shall not disclose the name or identity of any
individual or entity of the private sector that participated in the
Program or with whom there was communication about the Program, to
the extent that information is classified.
(d) Resources.--
(1) Expedited security clearance.--The Director of National
Intelligence shall ensure that the process for the investigation
and adjudication of an application by an Inspector General or any
appropriate staff of an Inspector General for a security clearance
necessary for the conduct of the review under subsection (b)(1) is
carried out as expeditiously as possible.
(2) Additional personnel for the inspectors general.--An
Inspector General required to conduct a review under subsection
(b)(1) and submit a report under subsection (c) is authorized to
hire such additional personnel as may be necessary to carry out
such review and prepare such report in a prompt and timely manner.
Personnel authorized to be hired under this paragraph--
(A) shall perform such duties relating to such a review as
the relevant Inspector General shall direct; and
(B) are in addition to any other personnel authorized by
law.
(3) Transfer of personnel.--The Attorney General, the Secretary
of Defense, the Director of National Intelligence, the Director of
the National Security Agency, or the head of any other element of
the intelligence community may transfer personnel to the relevant
Office of the Inspector General required to conduct a review under
subsection (b)(1) and submit a report under subsection (c) and, in
addition to any other personnel authorized by law, are authorized
to fill any vacancy caused by such a transfer. Personnel
transferred under this paragraph shall perform such duties relating
to such review as the relevant Inspector General shall direct.
TITLE IV--OTHER PROVISIONS
SEC. 401. SEVERABILITY.
If any provision of this Act, any amendment made by this Act, or
the application thereof to any person or circumstances is held invalid,
the validity of the remainder of the Act, of any such amendments, and
of the application of such provisions to other persons and
circumstances shall not be affected thereby.
SEC. 402. EFFECTIVE DATE.
Except as provided in section 404, the amendments made by this Act
shall take effect on the date of the enactment of this Act.
SEC. 403. REPEALS.
(a) Repeal of Protect America Act of 2007 Provisions.--
(1) Amendments to fisa.--
(A) In general.--Except as provided in section 404,
sections 105A, 105B, and 105C of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1805a, 1805b, and 1805c)
are repealed.
(B) Technical and conforming amendments.--
(i) Table of contents.--The table of contents in the
first section of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1801 et seq.) is amended by striking the
items relating to sections 105A, 105B, and 105C.
(ii) Conforming amendments.--Except as provided in
section 404, section 103(e) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1803(e)) is amended--
(I) in paragraph (1), by striking ``105B(h) or
501(f)(1)'' and inserting ``501(f)(1) or 702(h)(4)'';
and
(II) in paragraph (2), by striking ``105B(h) or
501(f)(1)'' and inserting ``501(f)(1) or 702(h)(4)''.
(2) Reporting requirements.--Except as provided in section 404,
section 4 of the Protect America Act of 2007 (Public Law 110-55;
121 Stat. 555) is repealed.
(3) Transition procedures.--Except as provided in section 404,
subsection (b) of section 6 of the Protect America Act of 2007
(Public Law 110-55; 121 Stat. 556) is repealed.
(b) FISA Amendments Act of 2008.--
(1) In general.--Except as provided in section 404, effective
December 31, 2012, title VII of the Foreign Intelligence
Surveillance Act of 1978, as amended by section 101(a), is
repealed.
(2) Technical and conforming amendments.--Effective December
31, 2012--
(A) the table of contents in the first section of such Act
(50 U.S.C. 1801 et seq.) is amended by striking the items
related to title VII;
(B) except as provided in section 404, section 601(a)(1) of
such Act (50 U.S.C. 1871(a)(1)) is amended to read as such
section read on the day before the date of the enactment of
this Act; and
(C) except as provided in section 404, section
2511(2)(a)(ii)(A) of title 18, United States Code, is amended
by striking ``or a court order pursuant to section 704 of the
Foreign Intelligence Surveillance Act of 1978''.
SEC. 404. TRANSITION PROCEDURES.
(a) Transition Procedures for Protect America Act of 2007
Provisions.--
(1) Continued effect of orders, authorizations, directives.--
Except as provided in paragraph (7), notwithstanding any other
provision of law, any order, authorization, or directive issued or
made pursuant to section 105B of the Foreign Intelligence
Surveillance Act of 1978, as added by section 2 of the Protect
America Act of 2007 (Public Law 110-55; 121 Stat. 552), shall
continue in effect until the expiration of such order,
authorization, or directive.
(2) Applicability of protect america act of 2007 to continued
orders, authorizations, directives.--Notwithstanding any other
provision of this Act, any amendment made by this Act, or the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.)--
(A) subject to paragraph (3), section 105A of such Act, as
added by section 2 of the Protect America Act of 2007 (Public
Law 110-55; 121 Stat. 552), shall continue to apply to any
acquisition conducted pursuant to an order, authorization, or
directive referred to in paragraph (1); and
(B) sections 105B and 105C of the Foreign Intelligence
Surveillance Act of 1978, as added by sections 2 and 3,
respectively, of the Protect America Act of 2007, shall
continue to apply with respect to an order, authorization, or
directive referred to in paragraph (1) until the later of--
(i) the expiration of such order, authorization, or
directive; or
(ii) the date on which final judgment is entered for
any petition or other litigation relating to such order,
authorization, or directive.
(3) Use of information.--Information acquired from an
acquisition conducted pursuant to an order, authorization, or
directive referred to in paragraph (1) shall be deemed to be
information acquired from an electronic surveillance pursuant to
title I of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.) for purposes of section 106 of such Act (50
U.S.C. 1806), except for purposes of subsection (j) of such
section.
(4) Protection from liability.--Subsection (l) of section 105B
of the Foreign Intelligence Surveillance Act of 1978, as added by
section 2 of the Protect America Act of 2007, shall continue to
apply with respect to any directives issued pursuant to such
section 105B.
(5) Jurisdiction of foreign intelligence surveillance court.--
Notwithstanding any other provision of this Act or of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.),
section 103(e) of the Foreign Intelligence Surveillance Act (50
U.S.C. 1803(e)), as amended by section 5(a) of the Protect America
Act of 2007 (Public Law 110-55; 121 Stat. 556), shall continue to
apply with respect to a directive issued pursuant to section 105B
of the Foreign Intelligence Surveillance Act of 1978, as added by
section 2 of the Protect America Act of 2007, until the later of--
(A) the expiration of all orders, authorizations, or
directives referred to in paragraph (1); or
(B) the date on which final judgment is entered for any
petition or other litigation relating to such order,
authorization, or directive.
(6) Reporting requirements.--
(A) Continued applicability.--Notwithstanding any other
provision of this Act, any amendment made by this Act, the
Protect America Act of 2007 (Public Law 110-55), or the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.),
section 4 of the Protect America Act of 2007 shall continue to
apply until the date that the certification described in
subparagraph (B) is submitted.
(B) Certification.--The certification described in this
subparagraph is a certification--
(i) made by the Attorney General;
(ii) submitted as part of a semi-annual report required
by section 4 of the Protect America Act of 2007;
(iii) that states that there will be no further
acquisitions carried out under section 105B of the Foreign
Intelligence Surveillance Act of 1978, as added by section
2 of the Protect America Act of 2007, after the date of
such certification; and
(iv) that states that the information required to be
included under such section 4 relating to any acquisition
conducted under such section 105B has been included in a
semi-annual report required by such section 4.
(7) Replacement of orders, authorizations, and directives.--
(A) In general.--If the Attorney General and the Director
of National Intelligence seek to replace an authorization
issued pursuant to section 105B of the Foreign Intelligence
Surveillance Act of 1978, as added by section 2 of the Protect
America Act of 2007 (Public Law 110-55), with an authorization
under section 702 of the Foreign Intelligence Surveillance Act
of 1978 (as added by section 101(a) of this Act), the Attorney
General and the Director of National Intelligence shall, to the
extent practicable, submit to the Foreign Intelligence
Surveillance Court (as such term is defined in section
701(b)(2) of such Act (as so added)) a certification prepared
in accordance with subsection (g) of such section 702 and the
procedures adopted in accordance with subsections (d) and (e)
of such section 702 at least 30 days before the expiration of
such authorization.
(B) Continuation of existing orders.--If the Attorney
General and the Director of National Intelligence seek to
replace an authorization made pursuant to section 105B of the
Foreign Intelligence Surveillance Act of 1978, as added by
section 2 of the Protect America Act of 2007 (Public Law 110-
55; 121 Stat. 522), by filing a certification in accordance
with subparagraph (A), that authorization, and any directives
issued thereunder and any order related thereto, shall remain
in effect, notwithstanding the expiration provided for in
subsection (a) of such section 105B, until the Foreign
Intelligence Surveillance Court (as such term is defined in
section 701(b)(2) of the Foreign Intelligence Surveillance Act
of 1978 (as so added)) issues an order with respect to that
certification under section 702(i)(3) of such Act (as so added)
at which time the provisions of that section and of section
702(i)(4) of such Act (as so added) shall apply.
(8) Effective date.--Paragraphs (1) through (7) shall take
effect as if enacted on August 5, 2007.
(b) Transition Procedures for FISA Amendments Act of 2008
Provisions.--
(1) Orders in effect on december 31, 2012.--Notwithstanding any
other provision of this Act, any amendment made by this Act, or the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.), any order, authorization, or directive issued or made under
title VII of the Foreign Intelligence Surveillance Act of 1978, as
amended by section 101(a), shall continue in effect until the date
of the expiration of such order, authorization, or directive.
(2) Applicability of title vii of fisa to continued orders,
authorizations, directives.--Notwithstanding any other provision of
this Act, any amendment made by this Act, or the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.),
with respect to any order, authorization, or directive referred to
in paragraph (1), title VII of such Act, as amended by section
101(a), shall continue to apply until the later of--
(A) the expiration of such order, authorization, or
directive; or
(B) the date on which final judgment is entered for any
petition or other litigation relating to such order,
authorization, or directive.
(3) Challenge of directives; protection from liability; use of
information.--Notwithstanding any other provision of this Act or of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801
et seq.)--
(A) section 103(e) of such Act, as amended by section
403(a)(1)(B)(ii), shall continue to apply with respect to any
directive issued pursuant to section 702(h) of such Act, as
added by section 101(a);
(B) section 702(h)(3) of such Act (as so added) shall
continue to apply with respect to any directive issued pursuant
to section 702(h) of such Act (as so added);
(C) section 703(e) of such Act (as so added) shall continue
to apply with respect to an order or request for emergency
assistance under that section;
(D) section 706 of such Act (as so added) shall continue to
apply to an acquisition conducted under section 702 or 703 of
such Act (as so added); and
(E) section 2511(2)(a)(ii)(A) of title 18, United States
Code, as amended by section 101(c)(1), shall continue to apply
to an order issued pursuant to section 704 of the Foreign
Intelligence Surveillance Act of 1978, as added by section
101(a).
(4) Reporting requirements.--
(A) Continued applicability.--Notwithstanding any other
provision of this Act or of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), section
601(a) of such Act (50 U.S.C. 1871(a)), as amended by section
101(c)(2), and sections 702(l) and 707 of such Act, as added by
section 101(a), shall continue to apply until the date that the
certification described in subparagraph (B) is submitted.
(B) Certification.--The certification described in this
subparagraph is a certification--
(i) made by the Attorney General;
(ii) submitted to the Select Committee on Intelligence
of the Senate, the Permanent Select Committee on
Intelligence of the House of Representatives, and the
Committees on the Judiciary of the Senate and the House of
Representatives;
(iii) that states that there will be no further
acquisitions carried out under title VII of the Foreign
Intelligence Surveillance Act of 1978, as amended by
section 101(a), after the date of such certification; and
(iv) that states that the information required to be
included in a review, assessment, or report under section
601 of such Act, as amended by section 101(c), or section
702(l) or 707 of such Act, as added by section 101(a),
relating to any acquisition conducted under title VII of
such Act, as amended by section 101(a), has been included
in a review, assessment, or report under such section 601,
702(l), or 707.
(5) Transition procedures concerning the targeting of united
states persons overseas.--Any authorization in effect on the date
of enactment of this Act under section 2.5 of Executive Order 12333
to intentionally target a United States person reasonably believed
to be located outside the United States shall continue in effect,
and shall constitute a sufficient basis for conducting such an
acquisition targeting a United States person located outside the
United States until the earlier of--
(A) the date that authorization expires; or
(B) the date that is 90 days after the date of the
enactment of this Act.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.