[Congressional Record (Bound Edition), Volume 154 (2008), Part 1]
[Senate]
[Pages 948-951]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           TEXT OF AMENDMENTS

  SA 3951. Mr. BOND submitted an amendment intended to be proposed to 
amendment SA 3930 submitted by Mr. Cardin (for himself and Ms. 
Mikulski) and intended to be proposed to the bill S. 2248, to amend the 
Foreign Intelligence Surveillance Act of 1978, to modernize and 
streamline the provisions of that Act, and for other purposes; which 
was ordered to lie on the table; as follows:

       On page 1, line 3, strike ``the transitional procedures'', 
     and all that follows through ``2011.'' on line 8 and insert 
     the following: ``the previous sentence shall have no force or 
     effect.''.
                                 ______
                                 
  SA 3952. Mr. BOND submitted an amendment intended to be proposed to 
amendment SA 3901 submitted by Mr.

[[Page 949]]

Kennedy and intended to be proposed to the bill S. 2248, to amend the 
Foreign Intelligence Surveillance Act of 1978, to modernize and 
streamline the provisions of that Act, and for other purposes; which 
was ordered to lie on the table; as follows:

       On page 1, line 3, strike ``the transitional procedures'', 
     and all that follows through ``2010.'' on line 8 and insert 
     the following: ``the previous sentence shall have no force or 
     effect.''.
                                 ______
                                 
  SA 3953. Mr. BOND submitted an amendment intended to be proposed to 
amendment SA 3859 submitted by Mr. Cardin and intended to be proposed 
to the bill S. 2248, to amend the Foreign Intelligence Surveillance Act 
of 1978, to modernize and streamline the provisions of that Act, and 
for other purposes; which was ordered to lie on the table; as follows:

       On page 1, line 3, strike ``the transitional procedures'', 
     and all that follows through ``2011.'' on line 8 and insert 
     the following: ``the previous sentence shall have no force or 
     effect.''.
                                 ______
                                 
  SA 3954. Mr. BOND submitted an amendment intended to be proposed by 
him to the bill S. 2248, to amend the Foreign Intelligence Surveillance 
Act of 1978, to modernize and streamline the provisions of that Act, 
and for other purposes; which was ordered to lie on the table; as 
follows:

       On page 3, strike line 8 and all that follows through the 
     end of the amendment and insert the following:
       (c) Authorization Following Attack or Declaration of War.--
     The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1801 et seq.) is amended by--
       (1) striking section 111 and inserting the following:


         ``AUTHORIZATION FOLLOWING ATTACK OR DECLARATION OF WAR

       ``Sec. 111.  Notwithstanding any other law, the President, 
     through the Attorney General, may authorize electronic 
     surveillance without a court order to acquire foreign 
     intelligence information for a period of not longer than 180 
     days after the date of--
       ``(1) submission of a certification by the Attorney General 
     to the Select Committee on Intelligence of the Senate and the 
     Permanent Select Committee on Intelligence of the House of 
     Representatives that there is a grave threat of an imminent 
     attack on the United States;
       ``(2) an attack on the United States; or
       ``(3) a declaration of war by the Congress.'';
       (2) striking section 309 and inserting the following:


         ``AUTHORIZATION FOLLOWING ATTACK OR DECLARATION OF WAR

       ``Sec. 309.  Notwithstanding any other law, the President, 
     through the Attorney General, may authorize a physical search 
     without a court order to acquire foreign intelligence 
     information for a period of not longer than 180 days after 
     the date of--
       ``(1) submission of a certification by the Attorney General 
     to the Select Committee on Intelligence of the Senate and the 
     Permanent Select Committee on Intelligence of the House of 
     Representatives that there is a grave threat of an imminent 
     attack on the United States;
       ``(2) an attack on the United States; or
       ``(3) a declaration of war by the Congress.''; and
       (3) striking section 404 and inserting the following:


         ``AUTHORIZATION FOLLOWING ATTACK OR DECLARATION OF WAR

       ``Sec. 404.  Notwithstanding any other law, the President, 
     through the Attorney General, may authorize the use of a pen 
     register or trap and trace device without a court order to 
     acquire foreign intelligence information for a period of not 
     longer than 180 days after the date of--
       ``(1) submission of a certification by the Attorney General 
     to the Select Committee on Intelligence of the Senate and the 
     Permanent Select Committee on Intelligence of the House of 
     Representatives that there is a grave threat of an imminent 
     attack on the United States;
       ``(2) an attack on the United States; or
       ``(3) a declaration of war by the Congress.''.
       (d) Conforming Amendments.--
       (1) In general.--Section 2511(2) of title 18, United States 
     Code, is amended--
       (A) in paragraph (a), by adding at the end the following:
       ``(iii) If a certification under subparagraph (ii)(B) for 
     assistance to obtain foreign intelligence information is 
     based on statutory authority, the certification shall 
     identify the specific statutory provision, and shall certify 
     that the requirements have been met.''; and
       (B) in paragraph (f), by striking ``, as defined in section 
     101 of such Act,'' and inserting ``(as defined in section 
     101(f) of such Act regardless of the limitation of section 
     701 of such Act)''.
       (2) 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--
       (A) striking the item relating to section 111 and inserting 
     the following:

``Sec. 111. Authorization following attack or declaration of war.
``Sec. 112. Statement of exclusive means by which electronic 
              surveillance and interception of certain communications 
              may be conducted.'';
       (B) striking the item relating to section 309 and inserting 
     the following:

``Sec. 309. Authorization following attack or declaration of war.''; 
              and
       (C) striking the item relating to section 404 and inserting 
     the following:

``Sec. 404. Authorization following attack or declaration of war.''.
                                 ______
                                 
  SA 3955. Mr. BOND submitted an amendment intended to be proposed to 
amendment SA 3951 submitted by Mr. Feingold (for himself and Mr. Dodd) 
and intended to be proposed to the amendment SA 3911 proposed by Mr. 
Rockefeller (for himself and Mr. Bond) to the bill S. 2248, to amend 
the Foreign Intelligence Surveillance Act of 1978, to modernize and 
streamline the provisions of that Act, and for other purposes; which 
was ordered to lie on the table; as follows:

       On page 2, strike line 12 and all that follows through the 
     end of the amendment and insert the following:
       ``(ii) Limitation on use of information.--If part or all of 
     an acquisition authorized under subsection (a) is terminated 
     under clause (i)(II), no information obtained or evidence 
     derived from such terminated acquisition concerning any 
     United States person shall be received in evidence or 
     otherwise disclosed in any trial, hearing, or other 
     proceeding in or before any court, grand jury, department, 
     office, agency, regulatory body, legislative committee, or 
     other authority of the United States, a State, or political 
     subdivision thereof, and no information concerning any United 
     States person acquired from such terminated acquisition shall 
     subsequently be used or disclosed in any other manner by 
     Federal officers or employees without the consent of such 
     person, except with the approval of the Attorney General, if 
     the information indicates a threat of death or serious bodily 
     harm to any person.''
                                 ______
                                 
  SA 3956. Mr. BOND submitted an amendment intended to be proposed to 
amendment SA 3918 proposed by Mr. Reid to the bill S. 2248, to amend 
the Foreign Intelligence Surveillance Act of 1978, to modernize and 
streamline the provisions of that Act, and for other purposes; which 
was ordered to lie on the table; as follows:

       Strike all after ``1.'' and insert the following:

     SHORT TITLE.

       This Act may be cited as the ``Permanent Protect America 
     Act of 2008''.

      TITLE I--REPEAL OF SUNSET OF THE PROTECT AMERICA ACT OF 2007

     SEC. 101. REPEAL OF SUNSET OF THE PROTECT AMERICA ACT OF 
                   2007.

       Section 6 of the Protect America Act of 2007 (Public Law 
     110-55; 121 Stat. 557; 50 U.S.C. 1803 note) is amended by 
     striking subsection (c).

  TITLE II--PROTECTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS

     SEC. 201. DEFINITIONS.

       In this title:
       (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;

[[Page 950]]

       (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)).

     SEC. 202. LIMITATIONS ON CIVIL ACTIONS FOR ELECTRONIC 
                   COMMUNICATION SERVICE PROVIDERS.

       (a) Limitations.--
       (1) In general.--Notwithstanding any other provision of 
     law, a covered civil action shall not lie or be maintained in 
     a Federal or State court, and shall be promptly dismissed, if 
     the Attorney General certifies to the court that--
       (A) the assistance alleged to have been provided by the 
     electronic communication service provider was--
       (i) 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) Review.--A certification made pursuant to paragraph (1) 
     shall be subject to review by a court for abuse of 
     discretion.
       (b) Review of Certifications.--If the Attorney General 
     files a declaration under section 1746 of title 28, United 
     States Code, that disclosure of a certification made pursuant 
     to subsection (a) would harm the national security of the 
     United States, the court shall--
       (1) review such certification in camera and ex parte; and
       (2) limit any public disclosure concerning such 
     certification, including any public order following such an 
     ex parte review, to a statement that the conditions of 
     subsection (a) have been met, without disclosing the 
     subparagraph of subsection (a)(1) that is the basis for the 
     certification.
       (c) Nondelegation.--The authority and duties of the 
     Attorney General under this section shall be performed by the 
     Attorney General (or Acting Attorney General) or a designee 
     in a position not lower than the Deputy Attorney General.
       (d) Civil Actions in State Court.--A covered civil action 
     that is brought in a State court shall be deemed to arise 
     under the Constitution and laws of the United States and 
     shall be removable under section 1441 of title 28, United 
     States Code.
       (e) Rule of Construction.--Nothing in this section may be 
     construed to limit any otherwise available immunity, 
     privilege, or defense under any other provision of law.
       (f) Effective Date and Application.--This section shall 
     apply to any covered civil action that is pending on or filed 
     after the date of enactment of this Act.

     SEC. 203. PROCEDURES FOR IMPLEMENTING STATUTORY DEFENSES 
                   UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT 
                   OF 1978.

       The Foreign Intelligence Surveillance Act of 1978 (50 
     U.S.C. 1801 et seq.) is amended by adding after title VII the 
     following new title:

      ``TITLE VIII--PROTECTION OF PERSONS ASSISTING THE GOVERNMENT

     ``SEC. 801. DEFINITIONS.

       ``In this title:
       ``(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) Attorney general.--The term `Attorney General' has 
     the meaning give that term in section 101(g).
       ``(3) Contents.--The term `contents' has the meaning given 
     that term in section 101(n).
       ``(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 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 as specified or designated under 
     section 3(4) of the National Security Act of 1947 (50 U.S.C. 
     401a(4)).
       ``(6) Person.--The term `person' means--
       ``(A) an electronic communication service provider; or
       ``(B) a landlord, custodian, or other person who may be 
     authorized or required to furnish assistance pursuant to--
       ``(i) an order of the court established under section 
     103(a) directing such assistance;
       ``(ii) a certification in writing under section 
     2511(2)(a)(ii)(B) or 2709(b) of title 18, United States Code; 
     or
       ``(iii) a directive under section 102(a)(4), 105B(e), as in 
     effect on the day before the date of the enactment of the 
     FISA Amendments Act of 2008 or 703(h).
       ``(7) State.--The term `State' means any State, political 
     subdivision of a State, the Commonwealth of Puerto Rico, the 
     District of Columbia, and any territory or possession of the 
     United States, and includes any officer, public utility 
     commission, or other body authorized to regulate an 
     electronic communication service provider.

     ``SEC. 802. PROCEDURES FOR IMPLEMENTING STATUTORY DEFENSES.

       ``(a) Requirement for Certification.--
       ``(1) In general.--Notwithstanding any other provision of 
     law, no civil action may lie or be maintained in a Federal or 
     State court against any person for providing assistance to an 
     element of the intelligence community, and shall be promptly 
     dismissed, if the Attorney General certifies to the court 
     that--
       ``(A) any assistance by that person was provided pursuant 
     to an order of the court established under section 103(a) 
     directing such assistance;
       ``(B) any assistance by that person was provided pursuant 
     to a certification in writing under section 2511(2)(a)(ii)(B) 
     or 2709(b) of title 18, United States Code;
       ``(C) any assistance by that person was provided pursuant 
     to a directive under sections 102(a)(4), 105B(e), as in 
     effect on the day before the date of the enactment of the 
     FISA Amendments Act of 2008, or 703(h) directing such 
     assistance; or
       ``(D) the person did not provide the alleged assistance.
       ``(2) Review.--A certification made pursuant to paragraph 
     (1) shall be subject to review by a court for abuse of 
     discretion.
       ``(b) Limitations on Disclosure.--If the Attorney General 
     files a declaration under section 1746 of title 28, United 
     States Code, that disclosure of a certification made pursuant 
     to subsection (a) would harm the national security of the 
     United States, the court shall--
       ``(1) review such certification in camera and ex parte; and
       ``(2) limit any public disclosure concerning such 
     certification, including any public order following such an 
     ex parte review, to a statement that the conditions of 
     subsection (a) have been met, without disclosing the 
     subparagraph of subsection (a)(1) that is the basis for the 
     certification.
       ``(c) Removal.--A civil action against a person for 
     providing assistance to an element of the intelligence 
     community that is brought in a State court shall be deemed to 
     arise under the Constitution and laws of the United States 
     and shall be removable under section 1441 of title 28, United 
     States Code.
       ``(d) Relationship to Other Laws.--Nothing in this section 
     may be construed to limit any otherwise available immunity, 
     privilege, or defense under any other provision of law.
       ``(e) Applicability.--This section shall apply to a civil 
     action pending on or filed after the date of enactment of the 
     FISA Amendments Act of 2008.''.

     SEC. 204. PREEMPTION OF STATE INVESTIGATIONS.

       Title VIII of the Foreign Intelligence Surveillance Act (50 
     U.S.C. 1801 et seq.), as added by section 203 of this Act, is 
     amended by adding at the end the following new section:

     ``SEC. 803. PREEMPTION.

       ``(a) In General.--No State shall have authority to--
       ``(1) conduct an investigation into an electronic 
     communication service provider's alleged assistance to an 
     element of the intelligence community;
       ``(2) require through regulation or any other means the 
     disclosure of information about an electronic communication 
     service provider's alleged assistance to an element of the 
     intelligence community;
       ``(3) impose any administrative sanction on an electronic 
     communication service provider for assistance to an element 
     of the intelligence community; or
       ``(4) commence or maintain a civil action or other 
     proceeding to enforce a requirement that an electronic 
     communication service provider disclose information 
     concerning alleged assistance to an element of the 
     intelligence community.
       ``(b) Suits by the United States.--The United States may 
     bring suit to enforce the provisions of this section.

[[Page 951]]

       ``(c) Jurisdiction.--The district courts of the United 
     States shall have jurisdiction over any civil action brought 
     by the United States to enforce the provisions of this 
     section.
       ``(d) Application.--This section shall apply to any 
     investigation, action, or proceeding that is pending on or 
     filed after the date of enactment of the FISA Amendments Act 
     of 2008.''.

     SEC. 205. TECHNICAL AMENDMENTS.

       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 adding at the end the following:

      ``TITLE VIII--PROTECTION OF PERSONS ASSISTING THE GOVERNMENT

``Sec. 801. Definitions.
``Sec. 802. Procedures for implementing statutory defenses.
``Sec. 803. Preemption.''.
                                 ______
                                 
  SA 3957. Mr. BOND submitted an amendment intended to be proposed to 
amendment SA 3932 submitted by Mr. Whitehouse and intended to be 
proposed to the amendment SA 3911 proposed by Mr. Rockefeller (for 
himself and Mr. Bond) to the bill S. 2248, to amend the Foreign 
Intelligence Surveillance Act of 1978, to modernize and streamline the 
provisions of that Act, and for other purposes; which was ordered to 
lie on the table; as follows:

       On page 1, line 8, of the amendment, strike ``30'' and 
     insert ``90''.
                                 ______
                                 
  SA 3958. Mr. BOND submitted an amendment intended to be proposed to 
amendment SA 3929 submitted by Mr. Leahy (for himself, Mr. Kennedy, Mr. 
Menendez, and Ms. Mikulski) and intended to be proposed to the bill S. 
2248, to amend the Foreign Intelligence Surveillance Act of 1978, to 
modernize and streamline the provisions of that Act, and for other 
purposes; which was ordered to lie on the table; as follows:

       Strike line 4 of page 1 of the amendment and all that 
     follows and insert the following:
       (a) Terrorist Surveillance Program and Program Defined.--In 
     this section, the terms ``Terrorist 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.
       (b) Reviews.--
       (1) Requirement to conduct.--The Inspectors General of the 
     Office of the Director of National Intelligence, the 
     Department of Justice, and the National Security Agency, with 
     respect to the oversight authority and responsibility of each 
     such Inspector General and only with respect to the 
     participation of their respective agencies or departments in 
     the Terrorist Surveillance Program, shall complete, to the 
     extent applicable, a comprehensive review of--
       (A) the facts necessary to describe the establishment, 
     implementation, product, and use of the product of the 
     Program;
       (B) the procedures of, and access to, the legal reviews of 
     the Program;
       (C) communications with, and participation of, individuals 
     and entities in the private sector related to the Program; 
     and
       (D) interaction with the Foreign Intelligence Surveillance 
     Court and transition to court orders related to the Program.
       (2) Cooperation.--Each Inspector General required to 
     conduct a review under paragraph (1) shall utilize, to the 
     extent practicable and with due regard to the protection of 
     the national security of the United States, and not 
     unnecessarily duplicate or delay, such reviews or audits 
     related to the Program that have been completed or are being 
     undertaken by any such Inspector General or by any other 
     office of the Executive Branch.
       (c) Report.--
       (1) In general.--Not later than 1 year after the date of 
     the enactment of this Act, the Inspectors General required to 
     conduct a review under subsection (b) shall submit to the 
     Select Committee on Intelligence of the Senate and the 
     Permanent Select Committee on Intelligence of the House of 
     Representatives, to the extent practicable and with due 
     regard to the protection of intelligence sources and methods, 
     a comprehensive report of such reviews that includes any 
     recommendations of any such Inspector General within the 
     oversight authority and responsibility of any such Inspector 
     General.
       (2) Form.--The report submitted under paragraph (1) shall 
     be submitted in classified form.
                                 ______
                                 
  SA 3959. Mr. WHITEHOUSE submitted an amendment intended to be 
proposed to amendment SA 3903 submitted by Mr. Kyl and intended to be 
proposed to the bill S. 2248, to amend the Foreign Intelligence 
Surveillance Act of 1978, to modernize and streamline the provisions of 
that Act, and for other purposes; which was ordered to lie on the 
table; as follows:

       On page 1, line 2, strike ``Exception'' and all that 
     follows through line 7 and insert the following: 
     ``Application of paragraph (2).--Paragraph (2) shall apply to 
     an acquisition by an electronic, mechanical, or other 
     surveillance device outside the United States only if the 
     targeted United States person has a reasonable expectation of 
     privacy and a warrant would be required if the acquisition 
     were conducted inside the United States for law enforcement 
     purposes.''.

                          ____________________