II 110th CONGRESS 1st Session S. 2402 IN THE SENATE OF THE UNITED STATES December 3, 2007 Mr. Specter introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To provide for the substitution of the United States in certain civil actions.

1.

Short title

This Act may be cited as the “Foreign Intelligence Surveillance Substitution Act of 2007”.

2.

Definitions

In this Act: (1)

Assistance

The term assistance means the provision of, or the provision of access to, information (including communication contents, communications records, or other information relating to a customer or communication), facilities, or another form of assistance. (2)

Contents

The term contents has the meaning given that term in section 101(n) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(n)). (3)

Covered civil action

The term covered civil action means a civil action filed in a Federal or State court that— (A)alleges that an electronic communication service provider furnished assistance to an element of the intelligence community; and (B)seeks monetary or other relief from the electronic communication service provider related to the provision of such assistance. (4)

Electronic communication service provider

The term electronic communication service provider means— (A)a telecommunications carrier, as that term is defined in section 3 of the Communications Act of 1934 (47 U.S.C. 153); (B)a provider of an electronic communication service, as that term is defined in section 2510 of title 18, United States Code; (C)a provider of a remote computing service, as that term is defined in section 2711 of title 18, United States Code; (D)any other communication service provider who has access to wire or electronic communications either as such communications are transmitted or as such communications are stored; (E)a parent, subsidiary, affiliate, successor, or assignee of an entity described in subparagraph (A), (B), (C), or (D); or (F)an officer, employee, or agent of an entity described in subparagraph (A), (B), (C), (D), or (E). (5)

Element of the intelligence community

The term element of the intelligence community means an element of the intelligence community specified in or designated under section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)).

3.

Substitution of the United States in certain actions

(a)

In general

(1)

Certification

Notwithstanding any other provision of law, a Federal or State court shall substitute the United States for an electronic communication service provider with respect to any claim in a covered civil action as provided in this subsection, if the Attorney General certifies to that court that— (A)with respect to that claim, the assistance alleged to have been provided by the electronic communication service provider was— (i)provided in connection with an intelligence activity involving communications that was— (I)authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007; and (II)designed to detect or prevent a terrorist attack, or activities in preparation for a terrorist attack, against the United States; and (ii)described in a written request or directive from the Attorney General or the head of an element of the intelligence community (or the deputy of such person) to the electronic communication service provider indicating that the activity was— (I)authorized by the President; and (II)determined to be lawful; or (B)the electronic communication service provider did not provide the alleged assistance. (2)

Substitution

(A)

In general

Except as provided in subparagraph (B), upon receiving a certification under paragraph (1), a Federal or State court shall— (i)substitute the United States for the electronic communication service provider as the defendant as to all claims designated by the Attorney General in that certification; and (ii)as to that electronic communication service provider— (I)dismiss all claims designated by the Attorney General in that certification; and (II)enter a final judgment relating to those claims. (B)

Continuation of certain claims

If a certification by the Attorney General under paragraph (1) states that not all of the alleged assistance was provided under a written request or directive described in paragraph (1)(A)(ii), the electronic communication service provider shall remain as a defendant. (3)

Procedures

(A)

Tort claims

Upon a substitution under paragraph (2), for any tort claim— (i)the claim shall be deemed to have been filed under section 1346(b) of title 28, United States Code, except that sections 2401(b), 2675, and 2680(a) of title 28, United States Code, shall not apply; and (ii)notwithstanding any other provision of law, the claim shall be deemed timely filed against the United States if it was timely filed against the electronic communication service provider. (B)

Constitutional and statutory claims

Upon a substitution under paragraph (2), for any claim under the Constitution of the United States or any Federal statute— (i)the claim shall be deemed to have been filed against the United States under section 1331 of title 28, United States Code; (ii)with respect to any claim under a Federal statute that does not provide a cause of action against the United States, the plaintiff shall be permitted to amend such claim to substitute, as appropriate, a cause of action under— (I)section 704 of title 5, United States Code (commonly known as the Administrative Procedure Act); (II)section 2712 of title 18, United States Code; or (III)section 110 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1810); (iii)notwithstanding any other provision of law, the statutes of limitation applicable to the causes of action identified in clause (ii) shall not apply to any amended claim under that clause, and any such cause of action shall be deemed timely filed if any Federal statutory cause of action against the electronic communication service provider was timely filed; and (iv)notwithstanding any other provisions of law, for any amended claim under clause (ii) the United States shall be deemed a proper defendant under any statutes described in that clause, and any plaintiff that had standing to proceed against the original defendant shall be deemed an aggrieved party for purposes of proceeding under section 2712 of title 18, United States Code, or section 110 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1810). (C)

Discovery

(i)

In general

In a covered civil action in which the United States is substituted as party-defendant under paragraph (2), any plaintiff may serve third-party discovery requests to any electronic communications service provider as to which all claims are dismissed. (ii)

Binding the government

If a plaintiff in a covered civil action serves deposition notices under rule 30(b)(6) of the Federal Rules of Civil Procedure or requests under rule 36 of the Federal Rules of Civil Procedure for admission upon an electronic communications service provider as to which all claims were dismissed, the electronic communications service provider shall be deemed a party-defendant for purposes rule 30(b)(6) or rule 36 and its answers and admissions shall be deemed binding upon the Government. (b)

Certifications

(1)

In general

For purposes of substitution proceedings under this section— (A)a certification under subsection (a) may be provided and reviewed in camera, ex parte, and under seal; and (B)for any certification provided and reviewed as described in subparagraph (A), the court shall not disclose or cause the disclosure of its contents. (2)

Nondelegation

The authority and duties of the Attorney General under this section shall be performed by the Attorney General or a designee in a position not lower than the Deputy Attorney General. (c)

Limitations

This section, including any Federal statute cited in this section that operates as a waiver of sovereign immunity, constitute the sole waiver of sovereign immunity with respect to any covered civil action. (d)

Civil actions in State court

For purposes of section 1441 of title 28, United States Code, any covered civil action that is brought in a State court or administrative or regulatory bodies shall be deemed to arise under the Constitution or laws of the United States and shall be removable under that section. (e)

Rule of construction

Except as expressly provided in this section, nothing in this section may be construed to limit any immunity, privilege, or defense under any other provision of law, including any privilege, immunity, or defense that would otherwise have been available to the United States absent its substitution as party-defendant or had the United States been the named defendant. (f)

Effective date and application

This section shall apply to any covered civil action pending on or filed after the date of enactment of this Act.