[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.