FISA Amendments Act of 2008-(titles III and IV)
FISA Amendments Act of 2008
Public Law 110–261, as amended
FISA Amendments Act of 2008-(titles III and IV)
261
118–49
Statute Compilation
United States House of Representatives
Office of the Legislative Counsel
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EN
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FISA Amendments Act of 2008
Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008
10644
110
2008-07-10
FISA Amendments Act of 2008-(titles III and IV)
[(Public Law 110–261)]
[As Amended Through P.L. 118–49, Enacted April 20, 2024]
[Currency: This publication is a compilation of the text of Public Law 110–261. It was last amended by the public law listed in the As Amended Through note above and below at the bottom of each page of the pdf version and reflects current law through the date of the enactment of the public law listed at https://www.govinfo.gov/app/collection/comps/]
[Note: While this publication does not represent an official version of any Federal statute, substantial efforts have been made to ensure the accuracy of its contents. The official version of Federal law is found in the United States Statutes at Large and in the United States Code. The legal effect to be given to the Statutes at Large and the United States Code is established by statute (1 U.S.C. 112, 204).]

AN ACT
To amend the Foreign Intelligence Surveillance Act of 1978 to establish a procedure for authorizing certain acquisitions of foreign intelligence, 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; TABLE OF CONTENTS.
(a)

Short Title.—
This Act may be cited as the “Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008” or the “FISA Amendments Act of 2008”.
(b)

Table of Contents.
The table of contents for this Act is as follows:
Sec. 1.
Short title; table of contents.
TITLE I—
FOREIGN INTELLIGENCE SURVEILLANCE
SSec. 101. Additional procedures regarding certain persons outside the United States.
Sec. 102.
Statement of exclusive means by which electronic surveillance and interception of certain communications may be conducted.
Sec. 103.
Submittal to Congress of certain court orders under the Foreign Intelligence Surveillance Act of 1978.
Sec. 104.
Applications for court orders.
Sec. 105.
Issuance of an order.
Sec. 106.
Use of information.
Sec. 107.
Amendments for physical searches.
Sec. 108.
Amendments for emergency pen registers and trap and trace devices.
Sec. 109.
Foreign Intelligence Surveillance Court.
Sec. 110.
Weapons of mass destruction.
TITLE II—
PROTECTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS
Sec. 201.
Procedures for implementing statutory defenses under the Foreign Intelligence Surveillance Act of 1978.
Sec. 202.
Technical amendments.
TITLE III—
REVIEW OF PREVIOUS ACTIONS
Sec. 301.
Review of previous actions.
TITLE IV—
OTHER PROVISIONS
Sec. 401.
Severability.
Sec. 402.
Effective date.
Sec. 403.
Repeals.
Sec. 404.
Transition procedures.
* * * * * * *
TITLE III—

REVIEW OF PREVIOUS ACTIONS
SEC. 301.

REVIEW OF PREVIOUS ACTIONS.
(a)

Definitions.—
In this section:
(1)

Appropriate committees of congress.—
The term “appropriate committees of Congress” means—
(A)
the Select Committee on Intelligence and the Committee on the Judiciary of the Senate; and
(B)
the Permanent Select Committee on Intelligence and the Committee on the Judiciary of the House of Representatives.
(2)

Foreign intelligence surveillance court.—
The term “Foreign Intelligence Surveillance Court” means the court established under section 103(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a)).
(3)

President’s surveillance program and program.—
The terms “President’s Surveillance Program” and “Program” mean the intelligence activity involving communications that was authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007, including the program referred to by the President in a radio address on December 17, 2005 (commonly known as the Terrorist Surveillance Program).
(b)

Reviews.—
(1)

Requirement to conduct.—
The Inspectors General of the Department of Justice, the Office of the Director of National Intelligence, the National Security Agency, the Department of Defense, and any other element of the intelligence community that participated in the President’s Surveillance Program, shall complete a comprehensive review of, with respect to the oversight authority and responsibility of each such Inspector General—
(A)
all of the facts necessary to describe the establishment, implementation, product, and use of the product of the Program;
(B)
access to legal reviews of the Program and access to information about the Program;
(C)
communications with, and participation of, individuals and entities in the private sector related to the Program;
(D)
interaction with the Foreign Intelligence Surveillance Court and transition to court orders related to the Program; and
(E)
any other matters identified by any such Inspector General that would enable that Inspector General to complete a review of the Program, with respect to such Department or element.
(2)

Cooperation and coordination.—
(A)

Cooperation.—
Each Inspector General required to conduct a review under paragraph (1) shall—
(i)
work in conjunction, to the extent practicable, with any other Inspector General required to conduct such a review; and
(ii)
utilize, to the extent practicable, and not unnecessarily duplicate or delay, such reviews or audits that have been completed or are being undertaken by any such Inspector General or by any other office of the Executive Branch related to the Program.
(B)

Integration of other reviews.—
The Counsel of the Office of Professional Responsibility of the Department of Justice shall provide the report of any investigation conducted by such Office on matters relating to the Program, including any investigation of the process through which legal reviews of the Program were conducted and the substance of such reviews, to the Inspector General of the Department of Justice, who shall integrate the factual findings and conclusions of such investigation into its review.
(C)

Coordination.—
The Inspectors General shall designate one of the Inspectors General required to conduct a review under paragraph (1) that is appointed by the President, by and with the advice and consent of the Senate, to coordinate the conduct of the reviews and the preparation of the reports.
(c)

Reports.—
(1)

Preliminary reports.—
Not later than 60 days after the date of the enactment of this Act, the Inspectors General of the Department of Justice, the Office of the Director of National Intelligence, the National Security Agency, the Department of Defense, and any other Inspector General required to conduct a review under subsection (b)(1), shall submit to the appropriate committees of Congress an interim report that describes the planned scope of such review.
(2)

Final report.—
Not later than 1 year after the date of the enactment of this Act, the Inspectors General of the Department of Justice, the Office of the Director of National Intelligence, the National Security Agency, the Department of Defense, and any other Inspector General required to conduct a review under subsection (b)(1), shall submit to the appropriate committees of Congress, in a manner consistent with national security, a comprehensive report on such reviews that includes any recommendations of any such Inspectors General within the oversight authority and responsibility of any such Inspector General with respect to the reviews.
(3)

Form.—
A report under this subsection shall be submitted in unclassified form, but may include a classified annex. The unclassified report shall not disclose the name or identity of any individual or entity of the private sector that participated in the Program or with whom there was communication about the Program, to the extent that information is classified.
(d)

Resources.—
(1)

Expedited security clearance.—
The Director of National Intelligence shall ensure that the process for the investigation and adjudication of an application by an Inspector General or any appropriate staff of an Inspector General for a security clearance necessary for the conduct of the review under subsection (b)(1) is carried out as expeditiously as possible.
(2)

Additional personnel for the inspectors general.—
An Inspector General required to conduct a review under subsection (b)(1) and submit a report under subsection (c) is authorized to hire such additional personnel as may be necessary to carry out such review and prepare such report in a prompt and timely manner. Personnel authorized to be hired under this paragraph—
(A)
shall perform such duties relating to such a review as the relevant Inspector General shall direct; and
(B)
are in addition to any other personnel authorized by law.
(3)

Transfer of personnel.—
The Attorney General, the Secretary of Defense, the Director of National Intelligence, the Director of the National Security Agency, or the head of any other element of the intelligence community may transfer personnel to the relevant Office of the Inspector General required to conduct a review under subsection (b)(1) and submit a report under subsection (c) and, in addition to any other personnel authorized by law, are authorized to fill any vacancy caused by such a transfer. Personnel transferred under this paragraph shall perform such duties relating to such review as the relevant Inspector General shall direct.
TITLE IV—

OTHER PROVISIONS
SEC. 401.
[50 U.S.C. 1801 note]

SEVERABILITY.
If any provision of this Act, any amendment made by this Act, or the application thereof to any person or circumstances is held invalid, the validity of the remainder of the Act, of any such amendments, and of the application of such provisions to other persons and circumstances shall not be affected thereby.
SEC. 402.
[50 U.S.C. 1801 note]

EFFECTIVE DATE.
Except as provided in section 404, the amendments made by this Act shall take effect on the date of the enactment of this Act.
SEC. 403.

REPEALS.
(a)
[50 U.S.C. 1805a-1805]

Repeal of Protect America Act of 2007 Provisions.—
(1)

Amendments to fisa.—
(A)

In general.—
Except as provided in section 404, sections 105A, 105B, and 105C of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1805a, 1805b, and 1805c) are repealed.
(B)

Technical and conforming amendments.—
(i)

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 striking the items relating to sections 105A, 105B, and 105C.
(ii)

Conforming amendments.—
Except as provided in section 404, section 103(e) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(e)) is amended—
(I)
in paragraph (1), by striking “105B(h) or 501(f)(1)” and inserting “501(f)(1) or 702(h)(4)”; and
(II)
in paragraph (2), by striking “105B(h) or 501(f)(1)” and inserting “501(f)(1) or 702(h)(4)”.
(2)

Reporting requirements.—
Except as provided in section 404, section 4 of the Protect America Act of 2007 (Public Law 110-55; 121 Stat. 555) is repealed.
(3)
[50 U.S.C. 1803 note]

Transition procedures.—
Except as provided in section 404, subsection (b) of section 6 of the Protect America Act of 2007 (Public Law 110-55; 121 Stat. 556) is repealed.
(b)

FISA Amendments Act of 2008.—
(1)
[50 U.S.C. 1881 note]

In general.—
Except as provided in section 404, effective two years after the date of enactment of the Reforming Intelligence and Securing America Act, title VII of the Foreign Intelligence Surveillance Act of 1978, as amended by section 101(a) and by the FISA Amendments Reauthorization Act of 2017 and the Reforming Intelligence and Securing America Act, is repealed.
(2)
[18 U.S.C. 2511 note]

Technical and conforming amendments.—
Effective two years after the date of enactment of the Reforming Intelligence and Securing America Act—
(A)
the table of contents in the first section of such Act (50 U.S.C. 1801 et seq.) is amended by striking the items related to title VII;
(B)
except as provided in section 404, section 601(a)(1) of such Act (50 U.S.C. 1871(a)(1)) is amended to read as such section read on the day before the date of the enactment of this Act; and
(C)
except as provided in section 404, section 2511(2)(a)(ii)(A) of title 18, United States Code, is amended by striking “or a court order pursuant to section 704 of the Foreign Intelligence Surveillance Act of 1978”.
SEC. 404.
[50 U.S.C. 1801 note]

TRANSITION PROCEDURES.
(a)

Transition Procedures for Protect America Act of 2007 Provisions.—
(1)

Continued effect of orders, authorizations, directives.—
Except as provided in paragraph (7), notwithstanding any other provision of law, any order, authorization, or directive issued or made pursuant to section 105B of the Foreign Intelligence Surveillance Act of 1978, as added by section 2 of the Protect America Act of 2007 (Public Law 110-55; 121 Stat. 552), shall continue in effect until the expiration of such order, authorization, or directive.
(2)

Applicability of protect america act of 2007 to continued orders, authorizations, directives.—
Notwithstanding any other provision of this Act, any amendment made by this Act, or the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.)—
(A)
subject to paragraph (3), section 105A of such Act, as added by section 2 of the Protect America Act of 2007 (Public Law 110-55; 121 Stat. 552), shall continue to apply to any acquisition conducted pursuant to an order, authorization, or directive referred to in paragraph (1); and
(B)
sections 105B and 105C of the Foreign Intelligence Surveillance Act of 1978, as added by sections 2 and 3, respectively, of the Protect America Act of 2007, shall continue to apply with respect to an order, authorization, or directive referred to in paragraph (1) until the later of—
(i)
the expiration of such order, authorization, or directive; or
(ii)
the date on which final judgment is entered for any petition or other litigation relating to such order, authorization, or directive.
(3)

Use of information.—
Information acquired from an acquisition conducted pursuant to an order, authorization, or directive referred to in paragraph (1) shall be deemed to be information acquired from an electronic surveillance pursuant to title I of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) for purposes of section 106 of such Act (50 U.S.C. 1806), except for purposes of subsection (j) of such section.
(4)

Protection from liability.—
Subsection (l) of section 105B of the Foreign Intelligence Surveillance Act of 1978, as added by section 2 of the Protect America Act of 2007, shall continue to apply with respect to any directives issued pursuant to such section 105B.
(5)

Jurisdiction of foreign intelligence surveillance court.—
Notwithstanding any other provision of this Act or of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), section 103(e) of the Foreign Intelligence Surveillance Act (50 U.S.C. 1803(e)), as amended by section 5(a) of the Protect America Act of 2007 (Public Law 110-55; 121 Stat. 556), shall continue to apply with respect to a directive issued pursuant to section 105B of the Foreign Intelligence Surveillance Act of 1978, as added by section 2 of the Protect America Act of 2007, until the later of—
(A)
the expiration of all orders, authorizations, or directives referred to in paragraph (1); or
(B)
the date on which final judgment is entered for any petition or other litigation relating to such order, authorization, or directive.
(6)

Reporting requirements.—
(A)

Continued applicability.—
Notwithstanding any other provision of this Act, any amendment made by this Act, the Protect America Act of 2007 (Public Law 110-55), or the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), section 4 of the Protect America Act of 2007 shall continue to apply until the date that the certification described in subparagraph (B) is submitted.
(B)

Certification.—
The certification described in this subparagraph is a certification—
(i)
made by the Attorney General;
(ii)
submitted as part of a semi-annual report required by section 4 of the Protect America Act of 2007;
(iii)
that states that there will be no further acquisitions carried out under section 105B of the Foreign Intelligence Surveillance Act of 1978, as added by section 2 of the Protect America Act of 2007, after the date of such certification; and
(iv)
that states that the information required to be included under such section 4 relating to any acquisition conducted under such section 105B has been included in a semi-annual report required by such section 4.
(7)

Replacement of orders, authorizations, and directives.—
(A)

In general.—
If the Attorney General and the Director of National Intelligence seek to replace an authorization issued pursuant to section 105B of the Foreign Intelligence Surveillance Act of 1978, as added by section 2 of the Protect America Act of 2007 (Public Law 110-55), with an authorization under section 702 of the Foreign Intelligence Surveillance Act of 1978 (as added by section 101(a) of this Act), the Attorney General and the Director of National Intelligence shall, to the extent practicable, submit to the Foreign Intelligence Surveillance Court (as such term is defined in section 701(b)(2) of such Act (as so added)) a certification prepared in accordance with subsection (g) of such section 702 and the procedures adopted in accordance with subsections (d) and (e) of such section 702 at least 30 days before the expiration of such authorization.
(B)

Continuation of existing orders.—
If the Attorney General and the Director of National Intelligence seek to replace an authorization made pursuant to section 105B of the Foreign Intelligence Surveillance Act of 1978, as added by section 2 of the Protect America Act of 2007 (Public Law 110-55; 121 Stat. 522), by filing a certification in accordance with subparagraph (A), that authorization, and any directives issued thereunder and any order related thereto, shall remain in effect, notwithstanding the expiration provided for in subsection (a) of such section 105B, until the Foreign Intelligence Surveillance Court (as such term is defined in section 701(b)(2) of the Foreign Intelligence Surveillance Act of 1978 (as so added)) issues an order with respect to that certification under section 702(j)(3) of such Act (as so added) at which time the provisions of that section and of section 702(j)(4) of such Act (as so added) shall apply.
(8)

Effective date.—
Paragraphs (1) through (7) shall take effect as if enacted on August 5, 2007.
(b)

Transition Procedures for FISA Amendments Act of 2008 Provisions.—
(1)

Orders in effect on two years after the date of enactment of the reforming intelligence and securing america act.—
Notwithstanding any other provision of this Act, any amendment made by this Act, or the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), any order, authorization, or directive issued or made under title VII of the Foreign Intelligence Surveillance Act of 1978, as amended by section 101(a) and by the FISA Amendments Reauthorization Act of 2017 and the Reforming Intelligence and Securing America Act, shall continue in effect until the date of the expiration of such order, authorization, or directive.
(2)

Applicability of title vii of fisa to continued orders, authorizations, directives.—
Notwithstanding any other provision of this Act, any amendment made by this Act, or the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), with respect to any order, authorization, or directive referred to in paragraph (1), title VII of such Act, as amended by section 101(a) and by the FISA Amendments Reauthorization Act of 2017 and the Reforming Intelligence and Securing America Act, shall continue to apply until the later of—
(A)
the expiration of such order, authorization, or directive; or
(B)
the date on which final judgment is entered for any petition or other litigation relating to such order, authorization, or directive.
(3)

Challenge of directives; protection from liability; use of information.—
Notwithstanding any other provision of this Act or of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.)—
(A)
section 103(e) of such Act, as amended by section 403(a)(1)(B)(ii), shall continue to apply with respect to any directive issued pursuant to section 702(i) of such Act, as added by section 101(a);
(B)
section 702(i)(3) of such Act (as so added) shall continue to apply with respect to any directive issued pursuant to section 702(i) of such Act (as so added);
(C)
section 703(e) of such Act (as so added) shall continue to apply with respect to an order or request for emergency assistance under that section;
(D)
section 706 of such Act (as so added) shall continue to apply to an acquisition conducted under section 702 or 703 of such Act (as so added); and
(E)
section 2511(2)(a)(ii)(A) of title 18, United States Code, as amended by section 101(c)(1), shall continue to apply to an order issued pursuant to section 704 of the Foreign Intelligence Surveillance Act of 1978, as added by section 101(a).
(4)

Reporting requirements.—
(A)

Continued applicability.—
Notwithstanding any other provision of this Act or of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), section 601(a) of such Act (50 U.S.C. 1871(a)), as amended by section 101(c)(2), and sections 702(m) and 707 of such Act, as added by section 101(a) and amended by the FISA Amendments Reauthorization Act of 2017 and the Reforming Intelligence and Securing America Act, shall continue to apply until the date that the certification described in subparagraph (B) is submitted.
(B)

Certification.—
The certification described in this subparagraph is a certification—
(i)
made by the Attorney General;
(ii)
submitted to the Select Committee on Intelligence of the Senate, the Permanent Select Committee on Intelligence of the House of Representatives, and the Committees on the Judiciary of the Senate and the House of Representatives;
(iii)
that states that there will be no further acquisitions carried out under title VII of the Foreign Intelligence Surveillance Act of 1978, as amended by section 101(a) and by the FISA Amendments Reauthorization Act of 2017 and the Reforming Intelligence and Securing America Act, after the date of such certification; and
(iv)
that states that the information required to be included in a review, assessment, or report under section 601 of such Act, as amended by section 101(c), or section 702(m) or 707 of such Act, as added by section 101(a) and amended by the FISA Amendments Reauthorization Act of 2017 and the Reforming Intelligence and Securing America Act, relating to any acquisition conducted under title VII of such Act, as amended by section 101(a) and by the FISA Amendments Reauthorization Act of 2017 and the Reforming Intelligence and Securing America Act, has been included in a review, assessment, or report under such section 601, 702(l)1, or 707.
^1
The reference to “702(l)” at the end of clause (iv) probably should be to “702(m)”. See amendments made by section 101(a)(1) of Public Law 115–118.
(5)

Transition procedures concerning the targeting of united states persons overseas.—
Any authorization in effect on the date of enactment of this Act under section 2.5 of Executive Order 12333 to intentionally target a United States person reasonably believed to be located outside the United States shall continue in effect, and shall constitute a sufficient basis for conducting such an acquisition targeting a United States person located outside the United States until the earlier of—
(A)
the date that authorization expires; or
(B)
the date that is 90 days after the date of the enactment of this Act.