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:

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.