[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 876 Introduced in Senate (IS)]

111th CONGRESS
  1st Session
                                 S. 876

 To provide for the substitution of the United States in certain civil 
       actions relating to electronic service providers and FISA.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 23, 2009

 Mr. Specter (for himself and Mr. Whitehouse) 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 relating to electronic service providers and FISA.

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

SECTION 1. AMENDMENT TO FISA.

    Title III of the Foreign Intelligence Surveillance Act of 1978 
Amendments Act of 2008 (Public Law 110-261) is amended by inserting at 
the end the following:

``SEC. 302. 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), and subject to subparagraph (C), 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, 
                        consistent with the procedures under rule 25(c) 
                        of the Federal Rules of Civil Procedure, as if 
                        the United States were a party to whom the 
                        interest of the electronic communication 
                        service provider in the litigation had been 
                        transferred; 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.
                    ``(C) Determination.--
                            ``(i) In general.--Substitution under 
                        subparagraph (A) shall proceed only after a 
                        determination by the Foreign Intelligence 
                        Surveillance Court that--
                                    ``(I) the 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 under 
                                paragraph (1)(A)(ii) complied with 
                                section 2511(2)(a)(ii)(B) of title 18, 
                                United States Code;
                                    ``(II) the assistance alleged to 
                                have been provided was undertaken by 
                                the electronic communication service 
                                provider acting in good faith and 
                                pursuant to an objectively reasonable 
                                belief that compliance with the written 
                                request or directive under paragraph 
                                (1)(A)(ii) was permitted by law; or
                                    ``(III) the electronic 
                                communication service provider did not 
                                provide the alleged assistance.
                            ``(ii) Certification.--If the Attorney 
                        General submits a certification under paragraph 
                        (1), the court to which that certification is 
                        submitted shall--
                                    ``(I) immediately certify the 
                                questions described in clause (i) to 
                                the Foreign Intelligence Surveillance 
                                Court; and
                                    ``(II) stay further proceedings in 
                                the relevant litigation, pending the 
                                determination of the Foreign 
                                Intelligence Surveillance Court.
                            ``(iii) Participation of parties.--In 
                        reviewing a certification and making a 
                        determination under clause (i), the Foreign 
                        Intelligence Surveillance Court shall permit 
                        any plaintiff and any defendant in the 
                        applicable covered civil action to appear 
                        before the Foreign Intelligence Surveillance 
                        Court pursuant to section 103 of the Foreign 
                        Intelligence Surveillance Act of 1978 (50 
                        U.S.C. 1803).
                            ``(iv) Declarations.--If the Attorney 
                        General files a declaration under section 1746 
                        of title 28, United States Code, that 
                        disclosure of a determination made pursuant to 
                        clause (i) would harm the national security of 
                        the United States, the Foreign Intelligence 
                        Surveillance Court shall limit any public 
                        disclosure concerning such determination, 
                        including any public order following such an ex 
                        parte review, to a statement that the 
                        conditions of clause (i) have or have not been 
                        met, without disclosing the basis for the 
                        determination.
                    ``(D) Special rule.--Notwithstanding any other 
                provision of this Act--
                            ``(i) in any matter in which the Foreign 
                        Intelligence Surveillance Court denies 
                        dismissal on grounds that the statutory 
                        defenses provided in title VIII of the Foreign 
                        Intelligence Surveillance Act of 1978 are 
                        unconstitutional, the Attorney General shall be 
                        substituted pursuant to this paragraph; and
                            ``(ii) if a claim is dismissed pursuant to 
                        title VIII of the Foreign Intelligence 
                        Surveillance Act of 1978 prior to date of 
                        enactment of this section, the claim against 
                        the United States shall be tolled for the 
                        period during which the claim was pending and 
                        may be refilled against the United States 
                        pursuant to rule 60(b) of the Federal Rules of 
                        Civil Procedure after the date of enactment of 
                        this section.
            ``(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) 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) the statutes of limitation 
                        applicable to the causes of action identified 
                        in clause (ii) shall apply to any amended claim 
                        under that clause subject to the tolling 
                        requirements of paragraph (2)(D)(ii), 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) 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 
                        for admission under rule 36 of the Federal 
                        Rules of Civil Procedure 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) Sovereign Immunity.--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 section.''.
                                 <all>