H.R. 6304 (110th): FISA Amendments Act of 2008

110th Congress, 2007–2009. Text as of Jul 09, 2008 (Passed Congress/Enrolled Bill).

Status & Summary | PDF | Source: GPO

I

One Hundred Tenth Congress of the United States of America

At the Second Session

H. R. 6304

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.

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

Sec. 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.

I

Foreign intelligence surveillance

101.

Additional procedures regarding certain persons outside the United States

(a)

In general

The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended—

(1)

by striking title VII; and

(2)

by adding at the end the following:

VII

Additional procedures regarding certain persons outside the United States

701.

Definitions

(a)

In general

The terms agent of a foreign power, Attorney General, contents, electronic surveillance, foreign intelligence information, foreign power, person, United States, and United States person have the meanings given such terms in section 101, except as specifically provided in this title.

(b)

Additional definitions

(1)

Congressional intelligence committees

The term congressional intelligence committees means—

(A)

the Select Committee on Intelligence of the Senate; and

(B)

the Permanent Select Committee on Intelligence of the House of Representatives.

(2)

Foreign Intelligence Surveillance Court; Court

The terms Foreign Intelligence Surveillance Court and Court mean the court established under section 103(a).

(3)

Foreign Intelligence Surveillance Court of Review; Court of Review

The terms Foreign Intelligence Surveillance Court of Review and Court of Review mean the court established under section 103(b).

(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; or

(E)

an officer, employee, or agent of an entity described in subparagraph (A), (B), (C), or (D).

(5)

Intelligence community

The term intelligence community has the meaning given the term in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)).

702.

Procedures for targeting certain persons outside the United States other than United States persons

(a)

Authorization

Notwithstanding any other provision of law, upon the issuance of an order in accordance with subsection (i)(3) or a determination under subsection (c)(2), the Attorney General and the Director of National Intelligence may authorize jointly, for a period of up to 1 year from the effective date of the authorization, the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.

(b)

Limitations

An acquisition authorized under subsection (a)—

(1)

may not intentionally target any person known at the time of acquisition to be located in the United States;

(2)

may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States;

(3)

may not intentionally target a United States person reasonably believed to be located outside the United States;

(4)

may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and

(5)

shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.

(c)

Conduct of acquisition

(1)

In general

An acquisition authorized under subsection (a) shall be conducted only in accordance with—

(A)

the targeting and minimization procedures adopted in accordance with subsections (d) and (e); and

(B)

upon submission of a certification in accordance with subsection (g), such certification.

(2)

Determination

A determination under this paragraph and for purposes of subsection (a) is a determination by the Attorney General and the Director of National Intelligence that exigent circumstances exist because, without immediate implementation of an authorization under subsection (a), intelligence important to the national security of the United States may be lost or not timely acquired and time does not permit the issuance of an order pursuant to subsection (i)(3) prior to the implementation of such authorization.

(3)

Timing of determination

The Attorney General and the Director of National Intelligence may make the determination under paragraph (2)—

(A)

before the submission of a certification in accordance with subsection (g); or

(B)

by amending a certification pursuant to subsection (i)(1)(C) at any time during which judicial review under subsection (i) of such certification is pending.

(4)

Construction

Nothing in title I shall be construed to require an application for a court order under such title for an acquisition that is targeted in accordance with this section at a person reasonably believed to be located outside the United States.

(d)

Targeting procedures

(1)

Requirement to adopt

The Attorney General, in consultation with the Director of National Intelligence, shall adopt targeting procedures that are reasonably designed to—

(A)

ensure that any acquisition authorized under subsection (a) is limited to targeting persons reasonably believed to be located outside the United States; and

(B)

prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.

(2)

Judicial review

The procedures adopted in accordance with paragraph (1) shall be subject to judicial review pursuant to subsection (i).

(e)

Minimization procedures

(1)

Requirement to adopt

The Attorney General, in consultation with the Director of National Intelligence, shall adopt minimization procedures that meet the definition of minimization procedures under section 101(h) or 301(4), as appropriate, for acquisitions authorized under subsection (a).

(2)

Judicial review

The minimization procedures adopted in accordance with paragraph (1) shall be subject to judicial review pursuant to subsection (i).

(f)

Guidelines for compliance with limitations

(1)

Requirement to adopt

The Attorney General, in consultation with the Director of National Intelligence, shall adopt guidelines to ensure—

(A)

compliance with the limitations in subsection (b); and

(B)

that an application for a court order is filed as required by this Act.

(2)

Submission of guidelines

The Attorney General shall provide the guidelines adopted in accordance with paragraph (1) to—

(A)

the congressional intelligence committees;

(B)

the Committees on the Judiciary of the Senate and the House of Representatives; and

(C)

the Foreign Intelligence Surveillance Court.

(g)

Certification

(1)

In general

(A)

Requirement

Subject to subparagraph (B), prior to the implementation of an authorization under subsection (a), the Attorney General and the Director of National Intelligence shall provide to the Foreign Intelligence Surveillance Court a written certification and any supporting affidavit, under oath and under seal, in accordance with this subsection.

(B)

Exception

If the Attorney General and the Director of National Intelligence make a determination under subsection (c)(2) and time does not permit the submission of a certification under this subsection prior to the implementation of an authorization under subsection (a), the Attorney General and the Director of National Intelligence shall submit to the Court a certification for such authorization as soon as practicable but in no event later than 7 days after such determination is made.

(2)

Requirements

A certification made under this subsection shall—

(A)

attest that—

(i)

there are procedures in place that have been approved, have been submitted for approval, or will be submitted with the certification for approval by the Foreign Intelligence Surveillance Court that are reasonably designed to—

(I)

ensure that an acquisition authorized under subsection (a) is limited to targeting persons reasonably believed to be located outside the United States; and

(II)

prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States;

(ii)

the minimization procedures to be used with respect to such acquisition—

(I)

meet the definition of minimization procedures under section 101(h) or 301(4), as appropriate; and

(II)

have been approved, have been submitted for approval, or will be submitted with the certification for approval by the Foreign Intelligence Surveillance Court;

(iii)

guidelines have been adopted in accordance with subsection (f) to ensure compliance with the limitations in subsection (b) and to ensure that an application for a court order is filed as required by this Act;

(iv)

the procedures and guidelines referred to in clauses (i), (ii), and (iii) are consistent with the requirements of the fourth amendment to the Constitution of the United States;

(v)

a significant purpose of the acquisition is to obtain foreign intelligence information;

(vi)

the acquisition involves obtaining foreign intelligence information from or with the assistance of an electronic communication service provider; and

(vii)

the acquisition complies with the limitations in subsection (b);

(B)

include the procedures adopted in accordance with subsections (d) and (e);

(C)

be supported, as appropriate, by the affidavit of any appropriate official in the area of national security who is—

(i)

appointed by the President, by and with the advice and consent of the Senate; or

(ii)

the head of an element of the intelligence community;

(D)

include—

(i)

an effective date for the authorization that is at least 30 days after the submission of the written certification to the court; or

(ii)

if the acquisition has begun or the effective date is less than 30 days after the submission of the written certification to the court, the date the acquisition began or the effective date for the acquisition; and

(E)

if the Attorney General and the Director of National Intelligence make a determination under subsection (c)(2), include a statement that such determination has been made.

(3)

Change in effective date

The Attorney General and the Director of National Intelligence may advance or delay the effective date referred to in paragraph (2)(D) by submitting an amended certification in accordance with subsection (i)(1)(C) to the Foreign Intelligence Surveillance Court for review pursuant to subsection (i).

(4)

Limitation

A certification made under this subsection is not required to identify the specific facilities, places, premises, or property at which an acquisition authorized under subsection (a) will be directed or conducted.

(5)

Maintenance of certification

The Attorney General or a designee of the Attorney General shall maintain a copy of a certification made under this subsection.

(6)

Review

A certification submitted in accordance with this subsection shall be subject to judicial review pursuant to subsection (i).

(h)

Directives and judicial review of directives

(1)

Authority

With respect to an acquisition authorized under subsection (a), the Attorney General and the Director of National Intelligence may direct, in writing, an electronic communication service provider to—

(A)

immediately provide the Government with all information, facilities, or assistance necessary to accomplish the acquisition in a manner that will protect the secrecy of the acquisition and produce a minimum of interference with the services that such electronic communication service provider is providing to the target of the acquisition; and

(B)

maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the acquisition or the aid furnished that such electronic communication service provider wishes to maintain.

(2)

Compensation

The Government shall compensate, at the prevailing rate, an electronic communication service provider for providing information, facilities, or assistance in accordance with a directive issued pursuant to paragraph (1).

(3)

Release from liability

No cause of action shall lie in any court against any electronic communication service provider for providing any information, facilities, or assistance in accordance with a directive issued pursuant to paragraph (1).

(4)

Challenging of directives

(A)

Authority to challenge

An electronic communication service provider receiving a directive issued pursuant to paragraph (1) may file a petition to modify or set aside such directive with the Foreign Intelligence Surveillance Court, which shall have jurisdiction to review such petition.

(B)

Assignment

The presiding judge of the Court shall assign a petition filed under subparagraph (A) to 1 of the judges serving in the pool established under section 103(e)(1) not later than 24 hours after the filing of such petition.

(C)

Standards for review

A judge considering a petition filed under subparagraph (A) may grant such petition only if the judge finds that the directive does not meet the requirements of this section, or is otherwise unlawful.

(D)

Procedures for initial review

A judge shall conduct an initial review of a petition filed under subparagraph (A) not later than 5 days after being assigned such petition. If the judge determines that such petition does not consist of claims, defenses, or other legal contentions that are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law, the judge shall immediately deny such petition and affirm the directive or any part of the directive that is the subject of such petition and order the recipient to comply with the directive or any part of it. Upon making a determination under this subparagraph or promptly thereafter, the judge shall provide a written statement for the record of the reasons for such determination.

(E)

Procedures for plenary review

If a judge determines that a petition filed under subparagraph (A) requires plenary review, the judge shall affirm, modify, or set aside the directive that is the subject of such petition not later than 30 days after being assigned such petition. If the judge does not set aside the directive, the judge shall immediately affirm or affirm with modifications the directive, and order the recipient to comply with the directive in its entirety or as modified. The judge shall provide a written statement for the record of the reasons for a determination under this subparagraph.

(F)

Continued effect

Any directive not explicitly modified or set aside under this paragraph shall remain in full effect.

(G)

Contempt of court

Failure to obey an order issued under this paragraph may be punished by the Court as contempt of court.

(5)

Enforcement of directives

(A)

Order to compel

If an electronic communication service provider fails to comply with a directive issued pursuant to paragraph (1), the Attorney General may file a petition for an order to compel the electronic communication service provider to comply with the directive with the Foreign Intelligence Surveillance Court, which shall have jurisdiction to review such petition.

(B)

Assignment

The presiding judge of the Court shall assign a petition filed under subparagraph (A) to 1 of the judges serving in the pool established under section 103(e)(1) not later than 24 hours after the filing of such petition.

(C)

Procedures for review

A judge considering a petition filed under subparagraph (A) shall, not later than 30 days after being assigned such petition, issue an order requiring the electronic communication service provider to comply with the directive or any part of it, as issued or as modified, if the judge finds that the directive meets the requirements of this section and is otherwise lawful. The judge shall provide a written statement for the record of the reasons for a determination under this paragraph.

(D)

Contempt of court

Failure to obey an order issued under this paragraph may be punished by the Court as contempt of court.

(E)

Process

Any process under this paragraph may be served in any judicial district in which the electronic communication service provider may be found.

(6)

Appeal

(A)

Appeal to the court of review

The Government or an electronic communication service provider receiving a directive issued pursuant to paragraph (1) may file a petition with the Foreign Intelligence Surveillance Court of Review for review of a decision issued pursuant to paragraph (4) or (5). The Court of Review shall have jurisdiction to consider such petition and shall provide a written statement for the record of the reasons for a decision under this subparagraph.

(B)

Certiorari to the supreme court

The Government or an electronic communication service provider receiving a directive issued pursuant to paragraph (1) may file a petition for a writ of certiorari for review of a decision of the Court of Review issued under subparagraph (A). The record for such review shall be transmitted under seal to the Supreme Court of the United States, which shall have jurisdiction to review such decision.

(i)

Judicial review of certifications and procedures

(1)

In general

(A)

Review by the foreign intelligence surveillance court

The Foreign Intelligence Surveillance Court shall have jurisdiction to review a certification submitted in accordance with subsection (g) and the targeting and minimization procedures adopted in accordance with subsections (d) and (e), and amendments to such certification or such procedures.

(B)

Time period for review

The Court shall review a certification submitted in accordance with subsection (g) and the targeting and minimization procedures adopted in accordance with subsections (d) and (e) and shall complete such review and issue an order under paragraph (3) not later than 30 days after the date on which such certification and such procedures are submitted.

(C)

Amendments

The Attorney General and the Director of National Intelligence may amend a certification submitted in accordance with subsection (g) or the targeting and minimization procedures adopted in accordance with subsections (d) and (e) as necessary at any time, including if the Court is conducting or has completed review of such certification or such procedures, and shall submit the amended certification or amended procedures to the Court not later than 7 days after amending such certification or such procedures. The Court shall review any amendment under this subparagraph under the procedures set forth in this subsection. The Attorney General and the Director of National Intelligence may authorize the use of an amended certification or amended procedures pending the Court’s review of such amended certification or amended procedures.

(2)

Review

The Court shall review the following:

(A)

Certification

A certification submitted in accordance with subsection (g) to determine whether the certification contains all the required elements.

(B)

Targeting procedures

The targeting procedures adopted in accordance with subsection (d) to assess whether the procedures are reasonably designed to—

(i)

ensure that an acquisition authorized under subsection (a) is limited to targeting persons reasonably believed to be located outside the United States; and

(ii)

prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.

(C)

Minimization procedures

The minimization procedures adopted in accordance with subsection (e) to assess whether such procedures meet the definition of minimization procedures under section 101(h) or section 301(4), as appropriate.

(3)

Orders

(A)

Approval

If the Court finds that a certification submitted in accordance with subsection (g) contains all the required elements and that the targeting and minimization procedures adopted in accordance with subsections (d) and (e) are consistent with the requirements of those subsections and with the fourth amendment to the Constitution of the United States, the Court shall enter an order approving the certification and the use, or continued use in the case of an acquisition authorized pursuant to a determination under subsection (c)(2), of the procedures for the acquisition.

(B)

Correction of deficiencies

If the Court finds that a certification submitted in accordance with subsection (g) does not contain all the required elements, or that the procedures adopted in accordance with subsections (d) and (e) are not consistent with the requirements of those subsections or the fourth amendment to the Constitution of the United States, the Court shall issue an order directing the Government to, at the Government’s election and to the extent required by the Court’s order—

(i)

correct any deficiency identified by the Court’s order not later than 30 days after the date on which the Court issues the order; or

(ii)

cease, or not begin, the implementation of the authorization for which such certification was submitted.

(C)

Requirement for written statement

In support of an order under this subsection, the Court shall provide, simultaneously with the order, for the record a written statement of the reasons for the order.

(4)

Appeal

(A)

Appeal to the court of review

The Government may file a petition with the Foreign Intelligence Surveillance Court of Review for review of an order under this subsection. The Court of Review shall have jurisdiction to consider such petition. For any decision under this subparagraph affirming, reversing, or modifying an order of the Foreign Intelligence Surveillance Court, the Court of Review shall provide for the record a written statement of the reasons for the decision.

(B)

Continuation of acquisition pending rehearing or appeal

Any acquisition affected by an order under paragraph (3)(B) may continue—

(i)

during the pendency of any rehearing of the order by the Court en banc; and

(ii)

if the Government files a petition for review of an order under this section, until the Court of Review enters an order under subparagraph (C).

(C)

Implementation pending appeal

Not later than 60 days after the filing of a petition for review of an order under paragraph (3)(B) directing the correction of a deficiency, the Court of Review shall determine, and enter a corresponding order regarding, whether all or any part of the correction order, as issued or modified, shall be implemented during the pendency of the review.

(D)

Certiorari to the supreme court

The Government may file a petition for a writ of certiorari for review of a decision of the Court of Review issued under subparagraph (A). The record for such review shall be transmitted under seal to the Supreme Court of the United States, which shall have jurisdiction to review such decision.

(5)

Schedule

(A)

Reauthorization of authorizations in effect

If the Attorney General and the Director of National Intelligence seek to reauthorize or replace an authorization issued under subsection (a), the Attorney General and the Director of National Intelligence shall, to the extent practicable, submit to the Court the certification prepared in accordance with subsection (g) and the procedures adopted in accordance with subsections (d) and (e) at least 30 days prior to the expiration of such authorization.

(B)

Reauthorization of orders, authorizations, and directives

If the Attorney General and the Director of National Intelligence seek to reauthorize or replace an authorization issued under subsection (a) by filing a certification pursuant to 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), until the Court issues an order with respect to such certification under paragraph (3) at which time the provisions of that paragraph and paragraph (4) shall apply with respect to such certification.

(j)

Judicial Proceedings

(1)

Expedited judicial proceedings

Judicial proceedings under this section shall be conducted as expeditiously as possible.

(2)

Time limits

A time limit for a judicial decision in this section shall apply unless the Court, the Court of Review, or any judge of either the Court or the Court of Review, by order for reasons stated, extends that time as necessary for good cause in a manner consistent with national security.

(k)

Maintenance and security of records and proceedings

(1)

Standards

The Foreign Intelligence Surveillance Court shall maintain a record of a proceeding under this section, including petitions, appeals, orders, and statements of reasons for a decision, under security measures adopted by the Chief Justice of the United States, in consultation with the Attorney General and the Director of National Intelligence.

(2)

Filing and review

All petitions under this section shall be filed under seal. In any proceedings under this section, the Court shall, upon request of the Government, review ex parte and in camera any Government submission, or portions of a submission, which may include classified information.

(3)

Retention of records

The Attorney General and the Director of National Intelligence shall retain a directive or an order issued under this section for a period of not less than 10 years from the date on which such directive or such order is issued.

(l)

Assessments and reviews

(1)

Semiannual assessment

Not less frequently than once every 6 months, the Attorney General and Director of National Intelligence shall assess compliance with the targeting and minimization procedures adopted in accordance with subsections (d) and (e) and the guidelines adopted in accordance with subsection (f) and shall submit each assessment to—

(A)

the Foreign Intelligence Surveillance Court; and

(B)

consistent with the Rules of the House of Representatives, the Standing Rules of the Senate, and Senate Resolution 400 of the 94th Congress or any successor Senate resolution—

(i)

the congressional intelligence committees; and

(ii)

the Committees on the Judiciary of the House of Representatives and the Senate.

(2)

Agency assessment

The Inspector General of the Department of Justice and the Inspector General of each element of the intelligence community authorized to acquire foreign intelligence information under subsection (a), with respect to the department or element of such Inspector General—

(A)

are authorized to review compliance with the targeting and minimization procedures adopted in accordance with subsections (d) and (e) and the guidelines adopted in accordance with subsection (f);

(B)

with respect to acquisitions authorized under subsection (a), shall review the number of disseminated intelligence reports containing a reference to a United States-person identity and the number of United States-person identities subsequently disseminated by the element concerned in response to requests for identities that were not referred to by name or title in the original reporting;

(C)

with respect to acquisitions authorized under subsection (a), shall review the number of targets that were later determined to be located in the United States and, to the extent possible, whether communications of such targets were reviewed; and

(D)

shall provide each such review to—

(i)

the Attorney General;

(ii)

the Director of National Intelligence; and

(iii)

consistent with the Rules of the House of Representatives, the Standing Rules of the Senate, and Senate Resolution 400 of the 94th Congress or any successor Senate resolution—

(I)

the congressional intelligence committees; and

(II)

the Committees on the Judiciary of the House of Representatives and the Senate.

(3)

Annual review

(A)

Requirement to conduct

The head of each element of the intelligence community conducting an acquisition authorized under subsection (a) shall conduct an annual review to determine whether there is reason to believe that foreign intelligence information has been or will be obtained from the acquisition. The annual review shall provide, with respect to acquisitions authorized under subsection (a)—

(i)

an accounting of the number of disseminated intelligence reports containing a reference to a United States-person identity;

(ii)

an accounting of the number of United States-person identities subsequently disseminated by that element in response to requests for identities that were not referred to by name or title in the original reporting;

(iii)

the number of targets that were later determined to be located in the United States and, to the extent possible, whether communications of such targets were reviewed; and

(iv)

a description of any procedures developed by the head of such element of the intelligence community and approved by the Director of National Intelligence to assess, in a manner consistent with national security, operational requirements and the privacy interests of United States persons, the extent to which the acquisitions authorized under subsection (a) acquire the communications of United States persons, and the results of any such assessment.

(B)

Use of review

The head of each element of the intelligence community that conducts an annual review under subparagraph (A) shall use each such review to evaluate the adequacy of the minimization procedures utilized by such element and, as appropriate, the application of the minimization procedures to a particular acquisition authorized under subsection (a).

(C)

Provision of review

The head of each element of the intelligence community that conducts an annual review under subparagraph (A) shall provide such review to—

(i)

the Foreign Intelligence Surveillance Court;

(ii)

the Attorney General;

(iii)

the Director of National Intelligence; and

(iv)

consistent with the Rules of the House of Representatives, the Standing Rules of the Senate, and Senate Resolution 400 of the 94th Congress or any successor Senate resolution—

(I)

the congressional intelligence committees; and

(II)

the Committees on the Judiciary of the House of Representatives and the Senate.

703.

Certain acquisitions inside the United States targeting United States persons outside the United States

(a)

Jurisdiction of the Foreign Intelligence Surveillance Court

(1)

In general

The Foreign Intelligence Surveillance Court shall have jurisdiction to review an application and to enter an order approving the targeting of a United States person reasonably believed to be located outside the United States to acquire foreign intelligence information, if the acquisition constitutes electronic surveillance or the acquisition of stored electronic communications or stored electronic data that requires an order under this Act, and such acquisition is conducted within the United States.

(2)

Limitation

If a United States person targeted under this subsection is reasonably believed to be located in the United States during the effective period of an order issued pursuant to subsection (c), an acquisition targeting such United States person under this section shall cease unless the targeted United States person is again reasonably believed to be located outside the United States while an order issued pursuant to subsection (c) is in effect. Nothing in this section shall be construed to limit the authority of the Government to seek an order or authorization under, or otherwise engage in any activity that is authorized under, any other title of this Act.

(b)

Application

(1)

In general

Each application for an order under this section shall be made by a Federal officer in writing upon oath or affirmation to a judge having jurisdiction under subsection (a)(1). Each application shall require the approval of the Attorney General based upon the Attorney General’s finding that it satisfies the criteria and requirements of such application, as set forth in this section, and shall include—

(A)

the identity of the Federal officer making the application;

(B)

the identity, if known, or a description of the United States person who is the target of the acquisition;

(C)

a statement of the facts and circumstances relied upon to justify the applicant's belief that the United States person who is the target of the acquisition is—

(i)

a person reasonably believed to be located outside the United States; and

(ii)

a foreign power, an agent of a foreign power, or an officer or employee of a foreign power;

(D)

a statement of proposed minimization procedures that meet the definition of minimization procedures under section 101(h) or 301(4), as appropriate;

(E)

a description of the nature of the information sought and the type of communications or activities to be subjected to acquisition;

(F)

a certification made by the Attorney General or an official specified in section 104(a)(6) that—

(i)

the certifying official deems the information sought to be foreign intelligence information;

(ii)

a significant purpose of the acquisition is to obtain foreign intelligence information;

(iii)

such information cannot reasonably be obtained by normal investigative techniques;

(iv)

designates the type of foreign intelligence information being sought according to the categories described in section 101(e); and

(v)

includes a statement of the basis for the certification that—

(I)

the information sought is the type of foreign intelligence information designated; and

(II)

such information cannot reasonably be obtained by normal investigative techniques;

(G)

a summary statement of the means by which the acquisition will be conducted and whether physical entry is required to effect the acquisition;

(H)

the identity of any electronic communication service provider necessary to effect the acquisition, provided that the application is not required to identify the specific facilities, places, premises, or property at which the acquisition authorized under this section will be directed or conducted;

(I)

a statement of the facts concerning any previous applications that have been made to any judge of the Foreign Intelligence Surveillance Court involving the United States person specified in the application and the action taken on each previous application; and

(J)

a statement of the period of time for which the acquisition is required to be maintained, provided that such period of time shall not exceed 90 days per application.

(2)

Other requirements of the Attorney General

The Attorney General may require any other affidavit or certification from any other officer in connection with the application.

(3)

Other requirements of the judge

The judge may require the applicant to furnish such other information as may be necessary to make the findings required by subsection (c)(1).

(c)

Order

(1)

Findings

Upon an application made pursuant to subsection (b), the Foreign Intelligence Surveillance Court shall enter an ex parte order as requested or as modified by the Court approving the acquisition if the Court finds that—

(A)

the application has been made by a Federal officer and approved by the Attorney General;

(B)

on the basis of the facts submitted by the applicant, for the United States person who is the target of the acquisition, there is probable cause to believe that the target is—

(i)

a person reasonably believed to be located outside the United States; and

(ii)

a foreign power, an agent of a foreign power, or an officer or employee of a foreign power;

(C)

the proposed minimization procedures meet the definition of minimization procedures under section 101(h) or 301(4), as appropriate; and

(D)

the application that has been filed contains all statements and certifications required by subsection (b) and the certification or certifications are not clearly erroneous on the basis of the statement made under subsection (b)(1)(F)(v) and any other information furnished under subsection (b)(3).

(2)

Probable cause

In determining whether or not probable cause exists for purposes of paragraph (1)(B), a judge having jurisdiction under subsection (a)(1) may consider past activities of the target and facts and circumstances relating to current or future activities of the target. No United States person may be considered a foreign power, agent of a foreign power, or officer or employee of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States.

(3)

Review

(A)

Limitation on review

Review by a judge having jurisdiction under subsection (a)(1) shall be limited to that required to make the findings described in paragraph (1).

(B)

Review of probable cause

If the judge determines that the facts submitted under subsection (b) are insufficient to establish probable cause under paragraph (1)(B), the judge shall enter an order so stating and provide a written statement for the record of the reasons for the determination. The Government may appeal an order under this subparagraph pursuant to subsection (f).

(C)

Review of minimization procedures

If the judge determines that the proposed minimization procedures referred to in paragraph (1)(C) do not meet the definition of minimization procedures under section 101(h) or 301(4), as appropriate, the judge shall enter an order so stating and provide a written statement for the record of the reasons for the determination. The Government may appeal an order under this subparagraph pursuant to subsection (f).

(D)

Review of certification

If the judge determines that an application pursuant to subsection (b) does not contain all of the required elements, or that the certification or certifications are clearly erroneous on the basis of the statement made under subsection (b)(1)(F)(v) and any other information furnished under subsection (b)(3), the judge shall enter an order so stating and provide a written statement for the record of the reasons for the determination. The Government may appeal an order under this subparagraph pursuant to subsection (f).

(4)

Specifications

An order approving an acquisition under this subsection shall specify—

(A)

the identity, if known, or a description of the United States person who is the target of the acquisition identified or described in the application pursuant to subsection (b)(1)(B);

(B)

if provided in the application pursuant to subsection (b)(1)(H), the nature and location of each of the facilities or places at which the acquisition will be directed;

(C)

the nature of the information sought to be acquired and the type of communications or activities to be subjected to acquisition;

(D)

a summary of the means by which the acquisition will be conducted and whether physical entry is required to effect the acquisition; and

(E)

the period of time during which the acquisition is approved.

(5)

Directives

An order approving an acquisition under this subsection shall direct—

(A)

that the minimization procedures referred to in paragraph (1)(C), as approved or modified by the Court, be followed;

(B)

if applicable, an electronic communication service provider to provide to the Government forthwith all information, facilities, or assistance necessary to accomplish the acquisition authorized under such order in a manner that will protect the secrecy of the acquisition and produce a minimum of interference with the services that such electronic communication service provider is providing to the target of the acquisition;

(C)

if applicable, an electronic communication service provider to maintain under security procedures approved by the Attorney General any records concerning the acquisition or the aid furnished that such electronic communication service provider wishes to maintain; and

(D)

if applicable, that the Government compensate, at the prevailing rate, such electronic communication service provider for providing such information, facilities, or assistance.

(6)

Duration

An order approved under this subsection shall be effective for a period not to exceed 90 days and such order may be renewed for additional 90-day periods upon submission of renewal applications meeting the requirements of subsection (b).

(7)

Compliance

At or prior to the end of the period of time for which an acquisition is approved by an order or extension under this section, the judge may assess compliance with the minimization procedures referred to in paragraph (1)(C) by reviewing the circumstances under which information concerning United States persons was acquired, retained, or disseminated.

(d)

Emergency authorization

(1)

Authority for emergency authorization

Notwithstanding any other provision of this Act, if the Attorney General reasonably determines that—

(A)

an emergency situation exists with respect to the acquisition of foreign intelligence information for which an order may be obtained under subsection (c) before an order authorizing such acquisition can with due diligence be obtained, and

(B)

the factual basis for issuance of an order under this subsection to approve such acquisition exists,

the Attorney General may authorize such acquisition if a judge having jurisdiction under subsection (a)(1) is informed by the Attorney General, or a designee of the Attorney General, at the time of such authorization that the decision has been made to conduct such acquisition and if an application in accordance with this section is made to a judge of the Foreign Intelligence Surveillance Court as soon as practicable, but not more than 7 days after the Attorney General authorizes such acquisition.
(2)

Minimization procedures

If the Attorney General authorizes an acquisition under paragraph (1), the Attorney General shall require that the minimization procedures referred to in subsection (c)(1)(C) for the issuance of a judicial order be followed.

(3)

Termination of emergency authorization

In the absence of a judicial order approving an acquisition under paragraph (1), such acquisition shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 7 days from the time of authorization by the Attorney General, whichever is earliest.

(4)

Use of information

If an application for approval submitted pursuant to paragraph (1) is denied, or in any other case where the acquisition is terminated and no order is issued approving the acquisition, no information obtained or evidence derived from such acquisition, except under circumstances in which the target of the acquisition is determined not to be a 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 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.

(e)

Release from liability

No cause of action shall lie in any court against any electronic communication service provider for providing any information, facilities, or assistance in accordance with an order or request for emergency assistance issued pursuant to subsection (c) or (d), respectively.

(f)

Appeal

(1)

Appeal to the Foreign Intelligence Surveillance Court of Review

The Government may file a petition with the Foreign Intelligence Surveillance Court of Review for review of an order issued pursuant to subsection (c). The Court of Review shall have jurisdiction to consider such petition and shall provide a written statement for the record of the reasons for a decision under this paragraph.

(2)

Certiorari to the Supreme Court

The Government may file a petition for a writ of certiorari for review of a decision of the Court of Review issued under paragraph (1). The record for such review shall be transmitted under seal to the Supreme Court of the United States, which shall have jurisdiction to review such decision.

(g)

Construction

Except as provided in this section, nothing in this Act shall be construed to require an application for a court order for an acquisition that is targeted in accordance with this section at a United States person reasonably believed to be located outside the United States.

704.

Other acquisitions targeting United States persons outside the United States

(a)

Jurisdiction and scope

(1)

Jurisdiction

The Foreign Intelligence Surveillance Court shall have jurisdiction to enter an order pursuant to subsection (c).

(2)

Scope

No element of the intelligence community may intentionally target, for the purpose of acquiring foreign intelligence information, a United States person reasonably believed to be located outside the United States under circumstances in which 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, unless a judge of the Foreign Intelligence Surveillance Court has entered an order with respect to such targeted United States person or the Attorney General has authorized an emergency acquisition pursuant to subsection (c) or (d), respectively, or any other provision of this Act.

(3)

Limitations

(A)

Moving or misidentified targets

If a United States person targeted under this subsection is reasonably believed to be located in the United States during the effective period of an order issued pursuant to subsection (c), an acquisition targeting such United States person under this section shall cease unless the targeted United States person is again reasonably believed to be located outside the United States during the effective period of such order.

(B)

Applicability

If an acquisition for foreign intelligence purposes is to be conducted inside the United States and could be authorized under section 703, the acquisition may only be conducted if authorized under section 703 or in accordance with another provision of this Act other than this section.

(C)

Construction

Nothing in this paragraph shall be construed to limit the authority of the Government to seek an order or authorization under, or otherwise engage in any activity that is authorized under, any other title of this Act.

(b)

Application

Each application for an order under this section shall be made by a Federal officer in writing upon oath or affirmation to a judge having jurisdiction under subsection (a)(1). Each application shall require the approval of the Attorney General based upon the Attorney General’s finding that it satisfies the criteria and requirements of such application as set forth in this section and shall include—

(1)

the identity of the Federal officer making the application;

(2)

the identity, if known, or a description of the specific United States person who is the target of the acquisition;

(3)

a statement of the facts and circumstances relied upon to justify the applicant's belief that the United States person who is the target of the acquisition is—

(A)

a person reasonably believed to be located outside the United States; and

(B)

a foreign power, an agent of a foreign power, or an officer or employee of a foreign power;

(4)

a statement of proposed minimization procedures that meet the definition of minimization procedures under section 101(h) or 301(4), as appropriate;

(5)

a certification made by the Attorney General, an official specified in section 104(a)(6), or the head of an element of the intelligence community that—

(A)

the certifying official deems the information sought to be foreign intelligence information; and

(B)

a significant purpose of the acquisition is to obtain foreign intelligence information;

(6)

a statement of the facts concerning any previous applications that have been made to any judge of the Foreign Intelligence Surveillance Court involving the United States person specified in the application and the action taken on each previous application; and

(7)

a statement of the period of time for which the acquisition is required to be maintained, provided that such period of time shall not exceed 90 days per application.

(c)

Order

(1)

Findings

Upon an application made pursuant to subsection (b), the Foreign Intelligence Surveillance Court shall enter an ex parte order as requested or as modified by the Court if the Court finds that—

(A)

the application has been made by a Federal officer and approved by the Attorney General;

(B)

on the basis of the facts submitted by the applicant, for the United States person who is the target of the acquisition, there is probable cause to believe that the target is—

(i)

a person reasonably believed to be located outside the United States; and

(ii)

a foreign power, an agent of a foreign power, or an officer or employee of a foreign power;

(C)

the proposed minimization procedures, with respect to their dissemination provisions, meet the definition of minimization procedures under section 101(h) or 301(4), as appropriate; and

(D)

the application that has been filed contains all statements and certifications required by subsection (b) and the certification provided under subsection (b)(5) is not clearly erroneous on the basis of the information furnished under subsection (b).

(2)

Probable cause

In determining whether or not probable cause exists for purposes of paragraph (1)(B), a judge having jurisdiction under subsection (a)(1) may consider past activities of the target and facts and circumstances relating to current or future activities of the target. No United States person may be considered a foreign power, agent of a foreign power, or officer or employee of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States.

(3)

Review

(A)

Limitations on review

Review by a judge having jurisdiction under subsection (a)(1) shall be limited to that required to make the findings described in paragraph (1). The judge shall not have jurisdiction to review the means by which an acquisition under this section may be conducted.

(B)

Review of probable cause

If the judge determines that the facts submitted under subsection (b) are insufficient to establish probable cause to issue an order under this subsection, the judge shall enter an order so stating and provide a written statement for the record of the reasons for such determination. The Government may appeal an order under this subparagraph pursuant to subsection (e).

(C)

Review of minimization procedures

If the judge determines that the minimization procedures applicable to dissemination of information obtained through an acquisition under this subsection do not meet the definition of minimization procedures under section 101(h) or 301(4), as appropriate, the judge shall enter an order so stating and provide a written statement for the record of the reasons for such determination. The Government may appeal an order under this subparagraph pursuant to subsection (e).

(D)

Scope of review of certification

If the judge determines that an application under subsection (b) does not contain all the required elements, or that the certification provided under subsection (b)(5) is clearly erroneous on the basis of the information furnished under subsection (b), the judge shall enter an order so stating and provide a written statement for the record of the reasons for such determination. The Government may appeal an order under this subparagraph pursuant to subsection (e).

(4)

Duration

An order under this paragraph shall be effective for a period not to exceed 90 days and such order may be renewed for additional 90-day periods upon submission of renewal applications meeting the requirements of subsection (b).

(5)

Compliance

At or prior to the end of the period of time for which an order or extension is granted under this section, the judge may assess compliance with the minimization procedures referred to in paragraph (1)(C) by reviewing the circumstances under which information concerning United States persons was disseminated, provided that the judge may not inquire into the circumstances relating to the conduct of the acquisition.

(d)

Emergency authorization

(1)

Authority for emergency authorization

Notwithstanding any other provision of this section, if the Attorney General reasonably determines that—

(A)

an emergency situation exists with respect to the acquisition of foreign intelligence information for which an order may be obtained under subsection (c) before an order under that subsection can, with due diligence, be obtained, and

(B)

the factual basis for the issuance of an order under this section exists,

the Attorney General may authorize the emergency acquisition if a judge having jurisdiction under subsection (a)(1) is informed by the Attorney General or a designee of the Attorney General at the time of such authorization that the decision has been made to conduct such acquisition and if an application in accordance with this section is made to a judge of the Foreign Intelligence Surveillance Court as soon as practicable, but not more than 7 days after the Attorney General authorizes such acquisition.
(2)

Minimization procedures

If the Attorney General authorizes an emergency acquisition under paragraph (1), the Attorney General shall require that the minimization procedures referred to in subsection (c)(1)(C) be followed.

(3)

Termination of emergency authorization

In the absence of an order under subsection (c), an emergency acquisition under paragraph (1) shall terminate when the information sought is obtained, if the application for the order is denied, or after the expiration of 7 days from the time of authorization by the Attorney General, whichever is earliest.

(4)

Use of information

If an application submitted to the Court pursuant to paragraph (1) is denied, or in any other case where the acquisition is terminated and no order with respect to the target of the acquisition is issued under subsection (c), no information obtained or evidence derived from such acquisition, except under circumstances in which the target of the acquisition is determined not to be a 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 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.

(e)

Appeal

(1)

Appeal to the court of review

The Government may file a petition with the Foreign Intelligence Surveillance Court of Review for review of an order issued pursuant to subsection (c). The Court of Review shall have jurisdiction to consider such petition and shall provide a written statement for the record of the reasons for a decision under this paragraph.

(2)

Certiorari to the Supreme Court

The Government may file a petition for a writ of certiorari for review of a decision of the Court of Review issued under paragraph (1). The record for such review shall be transmitted under seal to the Supreme Court of the United States, which shall have jurisdiction to review such decision.

705.

Joint applications and concurrent authorizations

(a)

Joint applications and orders

If an acquisition targeting a United States person under section 703 or 704 is proposed to be conducted both inside and outside the United States, a judge having jurisdiction under section 703(a)(1) or 704(a)(1) may issue simultaneously, upon the request of the Government in a joint application complying with the requirements of sections 703(b) and 704(b), orders under sections 703(c) and 704(c), as appropriate.

(b)

Concurrent authorization

If an order authorizing electronic surveillance or physical search has been obtained under section 105 or 304, the Attorney General may authorize, for the effective period of that order, without an order under section 703 or 704, the targeting of that United States person for the purpose of acquiring foreign intelligence information while such person is reasonably believed to be located outside the United States.

706.

Use of information acquired under title VII

(a)

Information acquired under section 702

Information acquired from an acquisition conducted under section 702 shall be deemed to be information acquired from an electronic surveillance pursuant to title I for purposes of section 106, except for the purposes of subsection (j) of such section.

(b)

Information acquired under section 703

Information acquired from an acquisition conducted under section 703 shall be deemed to be information acquired from an electronic surveillance pursuant to title I for purposes of section 106.

707.

Congressional oversight

(a)

Semiannual report

Not less frequently than once every 6 months, the Attorney General shall fully inform, in a manner consistent with national security, the congressional intelligence committees and the Committees on the Judiciary of the Senate and the House of Representatives, consistent with the Rules of the House of Representatives, the Standing Rules of the Senate, and Senate Resolution 400 of the 94th Congress or any successor Senate resolution, concerning the implementation of this title.

(b)

Content

Each report under subsection (a) shall include—

(1)

with respect to section 702—

(A)

any certifications submitted in accordance with section 702(g) during the reporting period;

(B)

with respect to each determination under section 702(c)(2), the reasons for exercising the authority under such section;

(C)

any directives issued under section 702(h) during the reporting period;

(D)

a description of the judicial review during the reporting period of such certifications and targeting and minimization procedures adopted in accordance with subsections (d) and (e) of section 702 and utilized with respect to an acquisition under such section, including a copy of an order or pleading in connection with such review that contains a significant legal interpretation of the provisions of section 702;

(E)

any actions taken to challenge or enforce a directive under paragraph (4) or (5) of section 702(h);

(F)

any compliance reviews conducted by the Attorney General or the Director of National Intelligence of acquisitions authorized under section 702(a);

(G)

a description of any incidents of noncompliance—

(i)

with a directive issued by the Attorney General and the Director of National Intelligence under section 702(h), including incidents of noncompliance by a specified person to whom the Attorney General and Director of National Intelligence issued a directive under section 702(h); and

(ii)

by an element of the intelligence community with procedures and guidelines adopted in accordance with subsections (d), (e), and (f) of section 702; and

(H)

any procedures implementing section 702;

(2)

with respect to section 703—

(A)

the total number of applications made for orders under section 703(b);

(B)

the total number of such orders—

(i)

granted;

(ii)

modified; and

(iii)

denied; and

(C)

the total number of emergency acquisitions authorized by the Attorney General under section 703(d) and the total number of subsequent orders approving or denying such acquisitions; and

(3)

with respect to section 704—

(A)

the total number of applications made for orders under section 704(b);

(B)

the total number of such orders—

(i)

granted;

(ii)

modified; and

(iii)

denied; and

(C)

the total number of emergency acquisitions authorized by the Attorney General under section 704(d) and the total number of subsequent orders approving or denying such applications.

708.

Savings provision

Nothing in this title shall be construed to limit the authority of the Government to seek an order or authorization under, or otherwise engage in any activity that is authorized under, any other title of this Act.

.

(b)

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—

(1)

by striking the item relating to title VII;

(2)

by striking the item relating to section 701; and

(3)

by adding at the end the following:

TITLE VII—Additional procedures regarding certain persons outside the United States

Sec. 701. Definitions.

Sec. 702. Procedures for targeting certain persons outside the United States other than United States persons.

Sec. 703. Certain acquisitions inside the United States targeting United States persons outside the United States.

Sec. 704. Other acquisitions targeting United States persons outside the United States.

Sec. 705. Joint applications and concurrent authorizations.

Sec. 706. Use of information acquired under title VII.

Sec. 707. Congressional oversight.

Sec. 708. Savings provision.

.

(c)

Technical and conforming amendments

(1)

Title 18, United States Code

Section 2511(2)(a)(ii)(A) of title 18, United States Code, is amended by inserting or a court order pursuant to section 704 of the Foreign Intelligence Surveillance Act of 1978 after assistance.

(2)

Foreign Intelligence Surveillance Act of 1978

Section 601(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1871(a)(1)) is amended—

(A)

in subparagraph (C), by striking and; and

(B)

by adding at the end the following new subparagraphs:

(E)

acquisitions under section 703; and

(F)

acquisitions under section 704;

.

102.

Statement of exclusive means by which electronic surveillance and interception of certain communications may be conducted

(a)

Statement of exclusive means

Title I of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended by adding at the end the following new section:

112.

Statement of exclusive means by which electronic surveillance and interception of certain communications may be conducted

(a)

Except as provided in subsection (b), the procedures of chapters 119, 121, and 206 of title 18, United States Code, and this Act shall be the exclusive means by which electronic surveillance and the interception of domestic wire, oral, or electronic communications may be conducted.

(b)

Only an express statutory authorization for electronic surveillance or the interception of domestic wire, oral, or electronic communications, other than as an amendment to this Act or chapters 119, 121, or 206 of title 18, United States Code, shall constitute an additional exclusive means for the purpose of subsection (a).

.

(b)

Offense

Section 109(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1809(a)) is amended by striking authorized by statute each place it appears and inserting authorized by this Act, chapter 119, 121, or 206 of title 18, United States Code, or any express statutory authorization that is an additional exclusive means for conducting electronic surveillance under section 112.; and

(c)

Conforming amendments

(1)

Title 18, United States Code

Section 2511(2)(a) of title 18, United States Code, is amended 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 statutory requirements have been met.

; and

(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 inserting after the item relating to section 111, the following new item:

Sec. 112. Statement of exclusive means by which electronic surveillance and interception of certain communications may be conducted.

.

103.

Submittal to Congress of certain court orders under the Foreign Intelligence Surveillance Act of 1978

(a)

Inclusion of certain orders in semiannual reports of Attorney General

Subsection (a)(5) of section 601 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1871) is amended by striking (not including orders) and inserting , orders,.

(b)

Reports by Attorney General on certain other orders

Such section 601 is further amended by adding at the end the following:

(c)

Submissions to Congress

The Attorney General shall submit to the committees of Congress referred to in subsection (a)—

(1)

a copy of any decision, order, or opinion issued by the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review that includes significant construction or interpretation of any provision of this Act, and any pleadings, applications, or memoranda of law associated with such decision, order, or opinion, not later than 45 days after such decision, order, or opinion is issued; and

(2)

a copy of each such decision, order, or opinion, and any pleadings, applications, or memoranda of law associated with such decision, order, or opinion, that was issued during the 5-year period ending on the date of the enactment of the FISA Amendments Act of 2008 and not previously submitted in a report under subsection (a).

(d)

Protection of national security

The Attorney General, in consultation with the Director of National Intelligence, may authorize redactions of materials described in subsection (c) that are provided to the committees of Congress referred to in subsection (a), if such redactions are necessary to protect the national security of the United States and are limited to sensitive sources and methods information or the identities of targets.

.

(c)

Definitions

Such section 601, as amended by subsections (a) and (b), is further amended by adding at the end the following:

(e)

Definitions

In this section:

(1)

Foreign intelligence surveillance court

The term Foreign Intelligence Surveillance Court means the court established under section 103(a).

(2)

Foreign intelligence surveillance court of review

The term Foreign Intelligence Surveillance Court of Review means the court established under section 103(b).

.

104.

Applications for court orders

Section 104 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1804) is amended—

(1)

in subsection (a)—

(A)

by striking paragraphs (2) and (11);

(B)

by redesignating paragraphs (3) through (10) as paragraphs (2) through (9), respectively;

(C)

in paragraph (5), as redesignated by subparagraph (B) of this paragraph, by striking detailed;

(D)

in paragraph (6), as redesignated by subparagraph (B) of this paragraph, in the matter preceding subparagraph (A)—

(i)

by striking Affairs or and inserting Affairs,; and

(ii)

by striking Senate— and inserting Senate, or the Deputy Director of the Federal Bureau of Investigation, if designated by the President as a certifying official—;

(E)

in paragraph (7), as redesignated by subparagraph (B) of this paragraph, by striking statement of and inserting summary statement of;

(F)

in paragraph (8), as redesignated by subparagraph (B) of this paragraph, by adding and at the end; and

(G)

in paragraph (9), as redesignated by subparagraph (B) of this paragraph, by striking ; and and inserting a period;

(2)

by striking subsection (b);

(3)

by redesignating subsections (c) through (e) as subsections (b) through (d), respectively; and

(4)

in paragraph (1)(A) of subsection (d), as redesignated by paragraph (3) of this subsection, by striking or the Director of National Intelligence and inserting the Director of National Intelligence, or the Director of the Central Intelligence Agency.

105.

Issuance of an order

(a)

In general

Section 105 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1805) is amended—

(1)

in subsection (a)—

(A)

by striking paragraph (1); and

(B)

by redesignating paragraphs (2) through (5) as paragraphs (1) through (4), respectively;

(2)

in subsection (b), by striking (a)(3) and inserting (a)(2);

(3)

in subsection (c)(1)—

(A)

in subparagraph (D), by adding and at the end;

(B)

in subparagraph (E), by striking ; and and inserting a period; and

(C)

by striking subparagraph (F);

(4)

by striking subsection (d);

(5)

by redesignating subsections (e) through (i) as subsections (d) through (h), respectively;

(6)

by amending subsection (e), as redesignated by paragraph (5) of this section, to read as follows:

(e)
(1)

Notwithstanding any other provision of this title, the Attorney General may authorize the emergency employment of electronic surveillance if the Attorney General—

(A)

reasonably determines that an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained;

(B)

reasonably determines that the factual basis for the issuance of an order under this title to approve such electronic surveillance exists;

(C)

informs, either personally or through a designee, a judge having jurisdiction under section 103 at the time of such authorization that the decision has been made to employ emergency electronic surveillance; and

(D)

makes an application in accordance with this title to a judge having jurisdiction under section 103 as soon as practicable, but not later than 7 days after the Attorney General authorizes such surveillance.

(2)

If the Attorney General authorizes the emergency employment of electronic surveillance under paragraph (1), the Attorney General shall require that the minimization procedures required by this title for the issuance of a judicial order be followed.

(3)

In the absence of a judicial order approving such electronic surveillance, the surveillance shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 7 days from the time of authorization by the Attorney General, whichever is earliest.

(4)

A denial of the application made under this subsection may be reviewed as provided in section 103.

(5)

In the event that such application for approval is denied, or in any other case where the electronic surveillance is terminated and no order is issued approving the surveillance, no information obtained or evidence derived from such surveillance 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 surveillance 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.

(6)

The Attorney General shall assess compliance with the requirements of paragraph (5).

; and

(7)

by adding at the end the following:

(i)

In any case in which the Government makes an application to a judge under this title to conduct electronic surveillance involving communications and the judge grants such application, upon the request of the applicant, the judge shall also authorize the installation and use of pen registers and trap and trace devices, and direct the disclosure of the information set forth in section 402(d)(2).

.

(b)

Conforming amendment

Section 108(a)(2)(C) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1808(a)(2)(C)) is amended by striking 105(f) and inserting 105(e);

106.

Use of information

Subsection (i) of section 106 of the Foreign Intelligence Surveillance Act of 1978 (8 U.S.C. 1806) is amended by striking radio communication and inserting communication.

107.

Amendments for physical searches

(a)

Applications

Section 303 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1823) is amended—

(1)

in subsection (a)—

(A)

by striking paragraph (2);

(B)

by redesignating paragraphs (3) through (9) as paragraphs (2) through (8), respectively;

(C)

in paragraph (2), as redesignated by subparagraph (B) of this paragraph, by striking detailed;

(D)

in paragraph (3)(C), as redesignated by subparagraph (B) of this paragraph, by inserting or is about to be before owned; and

(E)

in paragraph (6), as redesignated by subparagraph (B) of this paragraph, in the matter preceding subparagraph (A)—

(i)

by striking Affairs or and inserting Affairs,; and

(ii)

by striking Senate— and inserting Senate, or the Deputy Director of the Federal Bureau of Investigation, if designated by the President as a certifying official—; and

(2)

in subsection (d)(1)(A), by striking or the Director of National Intelligence and inserting the Director of National Intelligence, or the Director of the Central Intelligence Agency.

(b)

Orders

Section 304 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1824) is amended—

(1)

in subsection (a)—

(A)

by striking paragraph (1);

(B)

by redesignating paragraphs (2) through (5) as paragraphs (1) through (4), respectively; and

(C)

in paragraph (2)(B), as redesignated by subparagraph (B) of this paragraph, by inserting or is about to be before owned; and

(2)

by amending subsection (e) to read as follows:

(e)
(1)

Notwithstanding any other provision of this title, the Attorney General may authorize the emergency employment of a physical search if the Attorney General—

(A)

reasonably determines that an emergency situation exists with respect to the employment of a physical search to obtain foreign intelligence information before an order authorizing such physical search can with due diligence be obtained;

(B)

reasonably determines that the factual basis for issuance of an order under this title to approve such physical search exists;

(C)

informs, either personally or through a designee, a judge of the Foreign Intelligence Surveillance Court at the time of such authorization that the decision has been made to employ an emergency physical search; and

(D)

makes an application in accordance with this title to a judge of the Foreign Intelligence Surveillance Court as soon as practicable, but not more than 7 days after the Attorney General authorizes such physical search.

(2)

If the Attorney General authorizes the emergency employment of a physical search under paragraph (1), the Attorney General shall require that the minimization procedures required by this title for the issuance of a judicial order be followed.

(3)

In the absence of a judicial order approving such physical search, the physical search shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 7 days from the time of authorization by the Attorney General, whichever is earliest.

(4)

A denial of the application made under this subsection may be reviewed as provided in section 103.

(5)

In the event that such application for approval is denied, or in any other case where the physical search is terminated and no order is issued approving the physical search, no information obtained or evidence derived from such physical search 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 physical search 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.

(6)

The Attorney General shall assess compliance with the requirements of paragraph (5).

.

(c)

Conforming amendments

The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended—

(1)

in section 304(a)(4), as redesignated by subsection (b) of this section, by striking 303(a)(7)(E) and inserting 303(a)(6)(E); and

(2)

in section 305(k)(2), by striking 303(a)(7) and inserting 303(a)(6).

108.

Amendments for emergency pen registers and trap and trace devices

Section 403 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1843) is amended—

(1)

in subsection (a)(2), by striking 48 hours and inserting 7 days; and

(2)

in subsection (c)(1)(C), by striking 48 hours and inserting 7 days.

109.

Foreign Intelligence Surveillance Court

(a)

Designation of judges

Subsection (a) of section 103 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803) is amended by inserting at least before seven of the United States judicial circuits.

(b)

En banc authority

(1)

In general

Subsection (a) of section 103 of the Foreign Intelligence Surveillance Act of 1978, as amended by subsection (a) of this section, is further amended—

(A)

by inserting (1) after (a); and

(B)

by adding at the end the following new paragraph:

(2)
(A)

The court established under this subsection may, on its own initiative, or upon the request of the Government in any proceeding or a party under section 501(f) or paragraph (4) or (5) of section 702(h), hold a hearing or rehearing, en banc, when ordered by a majority of the judges that constitute such court upon a determination that—

(i)

en banc consideration is necessary to secure or maintain uniformity of the court's decisions; or

(ii)

the proceeding involves a question of exceptional importance.

(B)

Any authority granted by this Act to a judge of the court established under this subsection may be exercised by the court en banc. When exercising such authority, the court en banc shall comply with any requirements of this Act on the exercise of such authority.

(C)

For purposes of this paragraph, the court en banc shall consist of all judges who constitute the court established under this subsection.

.

(2)

Conforming amendments

The Foreign Intelligence Surveillance Act of 1978 is further amended—

(A)

in subsection (a) of section 103, as amended by this subsection, by inserting (except when sitting en banc under paragraph (2)) after no judge designated under this subsection; and

(B)

in section 302(c) (50 U.S.C. 1822(c)), by inserting (except when sitting en banc) after except that no judge.

(c)

Stay or modification during an appeal

Section 103 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803) is amended—

(1)

by redesignating subsection (f) as subsection (g); and

(2)

by inserting after subsection (e) the following new subsection:

(f)
(1)

A judge of the court established under subsection (a), the court established under subsection (b) or a judge of that court, or the Supreme Court of the United States or a justice of that court, may, in accordance with the rules of their respective courts, enter a stay of an order or an order modifying an order of the court established under subsection (a) or the court established under subsection (b) entered under any title of this Act, while the court established under subsection (a) conducts a rehearing, while an appeal is pending to the court established under subsection (b), or while a petition of certiorari is pending in the Supreme Court of the United States, or during the pendency of any review by that court.

(2)

The authority described in paragraph (1) shall apply to an order entered under any provision of this Act.

.

(d)

Authority of Foreign Intelligence Surveillance Court

Section 103 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803), as amended by this Act, is amended by adding at the end the following:

(i)

Nothing in this Act shall be construed to reduce or contravene the inherent authority of the court established under subsection (a) to determine or enforce compliance with an order or a rule of such court or with a procedure approved by such court.

.

110.

Weapons of mass destruction

(a)

Definitions

(1)

Foreign power

Subsection (a) of section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(a)) is amended—

(A)

in paragraph (5), by striking persons; or and inserting persons;;

(B)

in paragraph (6) by striking the period and inserting ; or; and

(C)

by adding at the end the following new paragraph:

(7)

an entity not substantially composed of United States persons that is engaged in the international proliferation of weapons of mass destruction.

.

(2)

Agent of a foreign power

Subsection (b)(1) of such section 101 is amended—

(A)

in subparagraph (B), by striking or at the end;

(B)

in subparagraph (C), by striking or at the end; and

(C)

by adding at the end the following new subparagraphs:

(D)

engages in the international proliferation of weapons of mass destruction, or activities in preparation therefor; or

(E)

engages in the international proliferation of weapons of mass destruction, or activities in preparation therefor for or on behalf of a foreign power; or

.

(3)

Foreign intelligence information

Subsection (e)(1)(B) of such section 101 is amended by striking sabotage or international terrorism and inserting sabotage, international terrorism, or the international proliferation of weapons of mass destruction.

(4)

Weapon of mass destruction

Such section 101 is amended by adding at the end the following new subsection:

(p)

Weapon of mass destruction means—

(1)

any explosive, incendiary, or poison gas device that is designed, intended, or has the capability to cause a mass casualty incident;

(2)

any weapon that is designed, intended, or has the capability to cause death or serious bodily injury to a significant number of persons through the release, dissemination, or impact of toxic or poisonous chemicals or their precursors;

(3)

any weapon involving a biological agent, toxin, or vector (as such terms are defined in section 178 of title 18, United States Code) that is designed, intended, or has the capability to cause death, illness, or serious bodily injury to a significant number of persons; or

(4)

any weapon that is designed, intended, or has the capability to release radiation or radioactivity causing death, illness, or serious bodily injury to a significant number of persons.

.

(b)

Use of information

(1)

In general

Section 106(k)(1)(B) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1806(k)(1)(B)) is amended by striking sabotage or international terrorism and inserting sabotage, international terrorism, or the international proliferation of weapons of mass destruction.

(2)

Physical searches

Section 305(k)(1)(B) of such Act (50 U.S.C. 1825(k)(1)(B)) is amended by striking sabotage or international terrorism and inserting sabotage, international terrorism, or the international proliferation of weapons of mass destruction.

(c)

Technical and conforming amendments

The Foreign Intelligence Surveillance Act of 1978 is further amended—

(1)

in paragraph (2) of section 105(d) (50 U.S.C. 1805(d)), as redesignated by section 105(a)(5) of this Act, by striking section 101(a) (5) or (6) and inserting paragraph (5), (6), or (7) of section 101(a);

(2)

in section 301(1) (50 U.S.C. 1821(1)), by inserting “weapon of mass destruction,” after person,; and

(3)

in section 304(d)(2) (50 U.S.C. 1824(d)(2)), by striking section 101(a) (5) or (6) and inserting paragraph (5), (6), or (7) of section 101(a).

II

Protections for electronic communication service providers

201.

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.), as amended by section 101, is further amended by adding at the end the following new title:

VIII

Protection of persons assisting the Government

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)

Civil action

The term civil action includes a covered civil action.

(3)

Congressional intelligence committees

The term congressional intelligence committees means—

(A)

the Select Committee on Intelligence of the Senate; and

(B)

the Permanent Select Committee on Intelligence of the House of Representatives.

(4)

Contents

The term contents has the meaning given that term in section 101(n).

(5)

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.

(6)

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).

(7)

Intelligence community

The term intelligence community has the meaning given the term in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)).

(8)

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 added by section 2 of the Protect America Act of 2007 (Public Law 110–55), or 702(h).

(9)

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.

802.

Procedures for implementing statutory defenses

(a)

Requirement for certification

Notwithstanding any other provision of law, a civil action may not 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 district court of the United States in which such action is pending that—

(1)

any assistance by that person was provided pursuant to an order of the court established under section 103(a) directing such assistance;

(2)

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;

(3)

any assistance by that person was provided pursuant to a directive under section 102(a)(4), 105B(e), as added by section 2 of the Protect America Act of 2007 (Public Law 110–55), or 702(h) directing such assistance;

(4)

in the case of a covered civil action, the assistance alleged to have been provided by the electronic communication service provider was—

(A)

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

(B)

the subject of a written request or directive, or a series of written requests or directives, 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

(5)

the person did not provide the alleged assistance.

(b)

Judicial review

(1)

Review of certifications

A certification under subsection (a) shall be given effect unless the court finds that such certification is not supported by substantial evidence provided to the court pursuant to this section.

(2)

Supplemental materials

In its review of a certification under subsection (a), the court may examine the court order, certification, written request, or directive described in subsection (a) and any relevant court order, certification, written request, or directive submitted pursuant to subsection (d).

(c)

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) or the supplemental materials provided pursuant to subsection (b) or (d) would harm the national security of the United States, the court shall—

(1)

review such certification and the supplemental materials in camera and ex parte; and

(2)

limit any public disclosure concerning such certification and the supplemental materials, including any public order following such in camera and ex parte review, to a statement as to whether the case is dismissed and a description of the legal standards that govern the order, without disclosing the paragraph of subsection (a) that is the basis for the certification.

(d)

Role of the parties

Any plaintiff or defendant in a civil action may submit any relevant court order, certification, written request, or directive to the district court referred to in subsection (a) for review and shall be permitted to participate in the briefing or argument of any legal issue in a judicial proceeding conducted pursuant to this section, but only to the extent that such participation does not require the disclosure of classified information to such party. To the extent that classified information is relevant to the proceeding or would be revealed in the determination of an issue, the court shall review such information in camera and ex parte, and shall issue any part of the court’s written order that would reveal classified information in camera and ex parte and maintain such part under seal.

(e)

Nondelegation

The authority and duties of the Attorney General under this section shall be performed by the Attorney General (or Acting Attorney General) or the Deputy Attorney General.

(f)

Appeal

The courts of appeals shall have jurisdiction of appeals from interlocutory orders of the district courts of the United States granting or denying a motion to dismiss or for summary judgment under this section.

(g)

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.

(h)

Relationship to other laws

Nothing in this section shall be construed to limit any otherwise available immunity, privilege, or defense under any other provision of law.

(i)

Applicability

This section shall apply to a civil action pending on or filed after the date of the enactment of the FISA Amendments Act of 2008.

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.

(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 commenced after the date of the enactment of the FISA Amendments Act of 2008.

804.

Reporting

(a)

Semiannual report

Not less frequently than once every 6 months, the Attorney General shall, in a manner consistent with national security, the Rules of the House of Representatives, the Standing Rules of the Senate, and Senate Resolution 400 of the 94th Congress or any successor Senate resolution, fully inform the congressional intelligence committees, the Committee on the Judiciary of the Senate, and the Committee on the Judiciary of the House of Representatives concerning the implementation of this title.

(b)

Content

Each report made under subsection (a) shall include—

(1)

any certifications made under section 802;

(2)

a description of the judicial review of the certifications made under section 802; and

(3)

any actions taken to enforce the provisions of section 803.

.

202.

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.), as amended by section 101(b), is further 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.

Sec. 804. Reporting.

.

III

Review of previous actions

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.

IV

Other provisions

401.

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.

402.

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.

403.

Repeals

(a)

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)

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)

In general

Except as provided in section 404, effective December 31, 2012, title VII of the Foreign Intelligence Surveillance Act of 1978, as amended by section 101(a), is repealed.

(2)

Technical and conforming amendments

Effective December 31, 2012—

(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.

404.

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(i)(3) of such Act (as so added) at which time the provisions of that section and of section 702(i)(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 December 31, 2012

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), 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), 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(h) of such Act, as added by section 101(a);

(B)

section 702(h)(3) of such Act (as so added) shall continue to apply with respect to any directive issued pursuant to section 702(h) 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(l) and 707 of such Act, as added by section 101(a), 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), 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(l) or 707 of such Act, as added by section 101(a), relating to any acquisition conducted under title VII of such Act, as amended by section 101(a), has been included in a review, assessment, or report under such section 601, 702(l), or 707.

(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.

Speaker of the House of Representatives.

Vice President of the United States and President of the Senate.