[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 2011 Placed on Calendar Senate (PCS)]






                                                       Calendar No. 332
110th CONGRESS
  1st Session
                                S. 2011

             Entitled the ``Protect America Act of 2007''.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             August 3, 2007

 Mr. Levin (for himself and Mr. Rockefeller) introduced the following 
bill; which was read twice, considered, read the third time, and failed 
                               of passage

                             August 3, 2007

                  Ordered to be placed on the calendar

_______________________________________________________________________

                                 A BILL


 
             Entitled the ``Protect America Act of 2007''.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. PURPOSE.

    To provide for a procedure before the FISA Court for an order, 
which may be amended as necessary at the request of the Government with 
the approval of the Court, authorizing procedures, guidelines, means or 
methods that will permit the collection of intelligence between foreign 
persons located outside the United States, while bringing incidental 
contacts with United States persons at home or abroad into compliance 
with existing law and minimization procedures.

SEC. 2. ADDITIONAL PROCEDURE FOR AUTHORIZING CERTAIN ELECTRONIC 
              SURVEILLANCE.

    (a) In General.--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 surveillance of persons outside the united states

    ``Sec. 105A.  Notwithstanding any other provision of this Act, a 
court order is not required for the electronic surveillance of the 
contents of any communication between persons that are not located 
within the United States for the purpose of collecting foreign 
intelligence information, without respect to whether the communication 
passes through the United States or the surveillance device is located 
within the United States.

   ``additional procedure for court approval for authorizing certain 
                        electronic surveillance

    ``Sec. 105B.  (a) In General.--Notwithstanding any other provision 
of this title, the Attorney General, in consultation with Director of 
National Intelligence, upon the authorization of the President, may 
apply to a judge of the court established under section 103(a) for an 
ex parte order, or an extension of an order, authorizing electronic 
surveillance for a period of 1 year, in accordance with this section.
    ``(b) Application.--
            ``(1) Contents.--An application for an order, or extension 
        of an order, submitted under subsection (a) shall include--
                    ``(A) the identity of the Federal officer making 
                the application;
                    ``(B) a written certification made under oath by 
                the Director of National Intelligence and the Attorney 
                General that--
                            ``(i) there are reasonable procedures in 
                        place for determining that the electronic 
                        surveillance under this section is directed at 
                        persons reasonably believed to be located 
                        outside the United States;
                            ``(ii) there are reasonable procedures in 
                        place to assess the implementation of the 
                        procedures described in subclause (i) to 
                        achieve the objective described in that 
                        subclause;
                            ``(iii) the acquisition does not constitute 
                        electronic surveillance within the meaning of 
                        paragraph (1) or (3) of section 101(f), and, to 
                        the extent any acquisition constitutes 
                        electronic surveillance within the meaning of 
                        paragraph (2) or (4) of section 101(f), that it 
                        is approved or minimized as appropriate;
                            ``(iv) a significant purpose of the 
                        electronic surveillance is to obtain foreign 
                        intelligence information;
                            ``(v) the proposed minimization procedures 
                        meet the definition of minimization procedures 
                        under section 101(h); and
                            ``(vi) the electronic surveillance involves 
                        obtaining 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;
                    ``(C) a general description of the nature of the 
                foreign intelligence information sought; and
                    ``(D) a general statement of the means by which the 
                electronic surveillance will be effected.
            ``(2) Specific persons and places not required.--
                    ``(A) An application for an order, or extension of 
                an order, submitted under subsection (a) shall not be 
                required to identify--
                            ``(i) the persons, other than a foreign 
                        power, against whom the electronic surveillance 
                        will be directed; or
                            ``(ii) the specific facilities, places, 
                        premises, or property at which the electronic 
                        surveillance will be directed or conducted.
    ``(c) Application Approval; Order.--
            ``(1) Application approval.--Notwithstanding any other law, 
        a judge considering an application for an order, or extension 
        of an order, submitted under subsection (a) shall--
                    ``(A) assess--
                            ``(i) the procedures by which the 
                        Government determines that electronic 
                        surveillance under this section is directed at 
                        persons reasonably believed to be located 
                        outside the United States; and
                            ``(ii) the minimization procedures to be 
                        used with respect to United States persons from 
                        such electronic surveillance activity; and
                    ``(B) approve such application if the judge 
                determines that the procedures assessed are in 
                accordance with law and are reasonably designed to 
                determine whether the targets are outside the United 
                States.
            ``(2) Order.--A judge approving an application pursuant to 
        paragraph (1) shall issue an order that--
                    ``(A)(i) authorizes the electronic surveillance as 
                requested; and
                    ``(ii) approves the minimization procedures with 
                respect to United States persons;
                    ``(B) directs the applicant to follow the 
                procedures referred to in section 105B(b)(1)(B)(i) and 
                the minimization procedures submitted by the Government 
                as approved;
                    ``(C) at the request of the applicant, requires a 
                specified communications service provider, custodian, 
                or other specified person, to furnish the applicant 
                forthwith with all information, facilities, or 
                technical assistance necessary to accomplish the 
                electronic surveillance in a manner that will protect 
                the secrecy of the electronic surveillance and produce 
                a minimum of interference with the services that 
                provider, custodian, or other person is providing; and
                    ``(D) at the request of the applicant, requires 
                such communications provider, custodian, or other 
                specified person to maintain under security procedures 
                approved by the Attorney General and the Director of 
                National Intelligence any records concerning the 
                electronic surveillance or the aid furnished that such 
                person wishes to maintain.
            ``(3) Minimization procedures.--An application for 
        reauthorization of an order issued under this section, shall 
        contain a description of the Government's minimization 
        procedures.
    ``(d) Guidelines for Surveillance of United States Persons.--Not 
later than 15 days after the date of the enactment of this section, the 
Attorney General shall establish guidelines that address communications 
with persons inside the United States and United States persons outside 
the United States and are designed to ensure that an application is 
filed under section 104 when the Attorney General seeks to continue 
electronic surveillance that began under this section but--
            ``(1) effectively is or has become surveillance of a person 
        within the United States; or
            ``(2) is of a nature or quantity as to infringe on the 
        reasonable expectation of privacy of persons within the United 
        States.
    ``(e) Compensation.--The Government shall compensate, at the 
prevailing rate, a person for providing information, facilities, or 
assistance pursuant to an order of the court under this section or 
pursuant to a directive under section 105C.
    ``(f) Liability.--Notwithstanding any other law, no cause of action 
shall lie in any court against any person for providing any 
information, facilities, or assistance in accordance with an order 
under this section or a directive under section 105C.
    ``(g) Retention of Orders.--An order granted under this section and 
directives under section 105C shall be retained for a period of not 
less than 10 years from the date on which such order or directive is 
made.
    ``(h) Appeal.--The Government may appeal any denial of an 
application submitted under this section to the court established under 
section 103(b). If such court determines that the denial 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.

      ``immediate authorization of certain electronic surveillance

    ``Sec. 105C.  (a) In General.--Notwithstanding any law, the 
Director of National Intelligence and the Attorney General, may, prior 
to the submission of an application under section 105B, authorize the 
immediate electronic surveillance of persons reasonably believed to be 
outside the United States if the Director of National Intelligence and 
the Attorney General determine that it is in the interest of the 
national security of the United States to begin the electronic 
surveillance and such electronic surveillance is subject to the 
certification to be filed as set forth below. The authority in this 
subsection shall not be used for successive or multiple authorizations 
of electronic surveillance of the same or similar scope.
    ``(b) In such case, the Attorney General shall--
            ``(1) transmit within 5 days of the initiation of 
        electronic surveillance pursuant to this section under seal to 
        the court established under section 103(a) a copy of a 
        certification made under section 105B(b)(1)(B). 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 except upon motion of the 
        Government;
            ``(2) submit an application for the approval of such 
        electronic surveillance to the court established under section 
        103(a) as soon as practicable, but in no event more than 10 
        days after the initiation of the electronic surveillance; and
            ``(3) the court shall act on such application in accordance 
        with section 105B within 30 days after receiving an application 
        under this subsection. The court may grant one or more 
        extensions of not more than 30 days, if the court determines 
        that additional time is needed. Any electronic surveillance 
        subsequent to the court's action shall be conducted only if 
        approved in accordance with section 105B. If the application is 
        disapproved, the data collected may be used or disclosed only 
        as authorized by the court.
    ``(c) Specific Persons and Places Not Required.--A certification 
under subsection (a) is not required to identify--
            ``(1) the person or foreign power against whom the 
        electronic surveillance will be directed; or
            ``(2) the specific facilities, places, premises, or 
        property at which the electronic surveillance will be directed 
        or conducted.
    ``(d) Directive.--With respect to an authorization of electronic 
surveillance under this section, the Attorney General, in consultation 
with the Director of National Intelligence, may direct a specified 
communications service provider, custodian, or other specified person, 
to--
            ``(1) furnish the applicant forthwith with all information, 
        facilities, or technical assistance necessary to accomplish the 
        electronic surveillance in a manner that will protect the 
        secrecy of the electronic surveillance and produce a minimum of 
        interference with the services that provider, custodian, or 
        other person is providing; and
            ``(2) maintain under security procedures approved by the 
        Attorney General and the Director of National Intelligence any 
        records concerning the electronic surveillance or the aid 
        furnished that such person wishes to maintain.
    ``(e) Failure To Comply.--In the case of a failure to comply with a 
directive issued pursuant to subsection (e), the Attorney General, in 
consultation with the Director of National Intelligence, may invoke the 
aid of the court established under section 103(a) to compel compliance 
with the directive, and the court shall issue an order requiring the 
person to comply with the directive unless the court finds that the 
directive does not meet the requirements of this section or is 
otherwise unlawful. 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.
    ``(f) Pendency of Appeal.--With the approval of a court of 
competent jurisdiction, the Government may continue any electronic 
surveillance affected by a directive issued under this section during 
the pendency of consideration of an application submitted under section 
105B, and any appeal process, including the period during which a 
petition for writ of certiorari may be pending and the period of any 
review by the Supreme Court of the United States.

                          ``report to congress

    ``Sec. 105D.  Report to Congress.--Not later than four months after 
the date of the enactment of this Act, the Inspector General of the 
Department of Justice, in coordination with the Inspector General of 
the Office of the Director of National Intelligence and the Inspector 
General of the National Security Agency, shall inform, in a manner 
consistent with the national security, 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 electronic surveillance under this 
section during the previous four-month period. Among the elements of 
each report made under this section shall be--
            ``(1) an assessment of whether the Act is functioning as 
        intended and the degree to which the program is resulting in 
        the collection of communications that originate or terminate 
        inside the United States;
            ``(2) a description of the incidents of non-compliance with 
        a directive issued by the Attorney General under section 105C;
            ``(3) a copy of any guidelines and procedures implementing 
        this Act, including the guidelines established pursuant to 
        section 105B(d);
            ``(4) a description of any incidents of non-compliance by 
        an element of the Intelligence Community with guidelines or 
        procedures established for determining that the electronic 
        surveillance authorized by the Attorney General and Director of 
        National Intelligence directed at persons reasonably believed 
        to be outside the United States;
            ``(5) a description of any incidents of non-compliance with 
        respect to minimization procedures and approval requirements 
        concerning U.S. persons; and
            ``(6) the number of certifications and directives issued 
        under section 105C during the reporting period.''.
    (b) Technical and Conforming Amendment.--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:

``Sec. 105A. Clarification of surveillance of persons outside the 
                            United States.
``Sec. 105B. Additional procedure for court approval authorizing 
                            certain electronic surveillance.
``Sec. 105C. Immediate authorization of certain electronic 
                            surveillance.
``Sec. 105D. Report to Congress.''.

SEC. 3. EFFECTIVE DATE; TRANSITION PROCEDURES.

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

SEC. 4. SUNSET.

    (a) Except as provided in subsections (b) and (c) the amendments 
made by this Act shall cease to have force or effect 180 days after the 
date of enactment of this Act.
    (b) Any order under section 105B of the Foreign Intelligence 
Surveillance Act of 1978, as added by this Act, in effect on the date 
described in paragraph (1) shall continue in effect until the date of 
the expiration of such order.
    (c) The expiration of amendments pursuant to subsection (a) shall 
not have any effect upon the liability of any party under subsection 
(e) of section 105B. Notwithstanding subsection (a), subsection (e) of 
section 105B shall remain in effect with regard to action taken in 
accordance with sections 105A, B, C, and D.
                                                       Calendar No. 332

110th CONGRESS

  1st Session

                                S. 2011

_______________________________________________________________________

                                 A BILL

             Entitled the ``Protect America Act of 2007''.

_______________________________________________________________________

                             August 3, 2007

   Read twice, considered, read the third time, and failed of passage

                             August 3, 2007

                  Ordered to be placed on the calendar