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