< Back to S. 2011 (110th Congress, 2007–2009)

Text of the A bill entitled “The Protect America Act of 2007”.

This bill failed in the Senate on August 3, 2007. The text of the bill below is as of Aug 3, 2007 (Placed on Calendar in the Senate).

Source: GPO

II

Calendar No. 332

110th CONGRESS

1st Session

S. 2011

IN THE SENATE OF THE UNITED STATES

August 3, 2007

(for himself and Mr. Rockefeller) introduced the following bill; which was read twice, considered, read the third time, and failed of passage

August 3, 2007

Ordered to be placed on the calendar

A BILL

Entitled the Protect America Act of 2007.

1.

Purpose

To provide for a procedure before the FISA Court for an order, which may be amended as necessary at the request of the Government with the approval of the Court, authorizing procedures, guidelines, means or methods that will permit the collection of intelligence between foreign persons located outside the United States, while bringing incidental contacts with United States persons at home or abroad into compliance with existing law and minimization procedures.

2.

Additional procedure for authorizing certain electronic surveillance

(a)

In general

The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended by inserting after section 105 the following:

105A.

Clarification of surveillance of persons outside the United States

Notwithstanding any other provision of this Act, a court order is not required for the electronic surveillance of the contents of any communication between persons that are not located within the United States for the purpose of collecting foreign intelligence information, without respect to whether the communication passes through the United States or the surveillance device is located within the United States.

105B.

Additional procedure for court approval for authorizing certain electronic surveillance

(a)

In general

Notwithstanding any other provision of this title, the Attorney General, in consultation with Director of National Intelligence, upon the authorization of the President, may apply to a judge of the court established under section 103(a) for an ex parte order, or an extension of an order, authorizing electronic surveillance for a period of 1 year, in accordance with this section.

(b)

Application

(1)

Contents

An application for an order, or extension of an order, submitted under subsection (a) shall include—

(A)

the identity of the Federal officer making the application;

(B)

a written certification made under oath by the Director of National Intelligence and the Attorney General that—

(i)

there are reasonable procedures in place for determining that the electronic surveillance under this section is directed at persons reasonably believed to be located outside the United States;

(ii)

there are reasonable procedures in place to assess the implementation of the procedures described in subclause (i) to achieve the objective described in that subclause;

(iii)

the acquisition does not constitute electronic surveillance within the meaning of paragraph (1) or (3) of section 101(f), and, to the extent any acquisition constitutes electronic surveillance within the meaning of paragraph (2) or (4) of section 101(f), that it is approved or minimized as appropriate;

(iv)

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

(v)

the proposed minimization procedures meet the definition of minimization procedures under section 101(h); and

(vi)

the electronic surveillance involves obtaining foreign intelligence information from or with the assistance of a communications service provider, custodian, or other person (including any officer, employee, agent or other specified person of such service provider, custodian, or other person) who has access to communications, either as they are transmitted or while they are stored, or equipment that is being or may be used to transmit or store such communications;

(C)

a general description of the nature of the foreign intelligence information sought; and

(D)

a general statement of the means by which the electronic surveillance will be effected.

(2)

Specific persons and places not required

(A)

An application for an order, or extension of an order, submitted under subsection (a) shall not be required to identify—

(i)

the persons, other than a foreign power, against whom the electronic surveillance will be directed; or

(ii)

the specific facilities, places, premises, or property at which the electronic surveillance will be directed or conducted.

(c)

Application approval; order

(1)

Application approval

Notwithstanding any other law, a judge considering an application for an order, or extension of an order, submitted under subsection (a) shall—

(A)

assess—

(i)

the procedures by which the Government determines that electronic surveillance under this section is directed at persons reasonably believed to be located outside the United States; and

(ii)

the minimization procedures to be used with respect to United States persons from such electronic surveillance activity; and

(B)

approve such application if the judge determines that the procedures assessed are in accordance with law and are reasonably designed to determine whether the targets are outside the United States.

(2)

Order

A judge approving an application pursuant to paragraph (1) shall issue an order that—

(A)
(i)

authorizes the electronic surveillance as requested; and

(ii)

approves the minimization procedures with respect to United States persons;

(B)

directs the applicant to follow the procedures referred to in section 105B(b)(1)(B)(i) and the minimization procedures submitted by the Government as approved;

(C)

at the request of the applicant, requires a specified communications service provider, custodian, or other specified person, to furnish the applicant forthwith with all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in a manner that will protect the secrecy of the electronic surveillance and produce a minimum of interference with the services that provider, custodian, or other person is providing; and

(D)

at the request of the applicant, requires such communications provider, custodian, or other specified person to maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the electronic surveillance or the aid furnished that such person wishes to maintain.

(3)

Minimization procedures

An application for reauthorization of an order issued under this section, shall contain a description of the Government's minimization procedures.

(d)

Guidelines for surveillance of United States persons

Not later than 15 days after the date of the enactment of this section, the Attorney General shall establish guidelines that address communications with persons inside the United States and United States persons outside the United States and are designed to ensure that an application is filed under section 104 when the Attorney General seeks to continue electronic surveillance that began under this section but—

(1)

effectively is or has become surveillance of a person within the United States; or

(2)

is of a nature or quantity as to infringe on the reasonable expectation of privacy of persons within the United States.

(e)

Compensation

The Government shall compensate, at the prevailing rate, a person for providing information, facilities, or assistance pursuant to an order of the court under this section or pursuant to a directive under section 105C.

(f)

Liability

Notwithstanding any other law, no cause of action shall lie in any court against any person for providing any information, facilities, or assistance in accordance with an order under this section or a directive under section 105C.

(g)

Retention of orders

An order granted under this section and directives under section 105C shall be retained for a period of not less than 10 years from the date on which such order or directive is made.

(h)

Appeal

The Government may appeal any denial of an application submitted under this section to the court established under section 103(b). If such court determines that the denial was properly entered, the court shall immediately provide for the record a written statement of each reason for its decision, and, on petition of the United States for a writ of certiorari, the record shall be transmitted under seal to the Supreme Court of the United States, which shall have jurisdiction to review such decision.

105C.

Immediate authorization of certain electronic surveillance

(a)

In general

Notwithstanding any law, the Director of National Intelligence and the Attorney General, may, prior to the submission of an application under section 105B, authorize the immediate electronic surveillance of persons reasonably believed to be outside the United States if the Director of National Intelligence and the Attorney General determine that it is in the interest of the national security of the United States to begin the electronic surveillance and such electronic surveillance is subject to the certification to be filed as set forth below. The authority in this subsection shall not be used for successive or multiple authorizations of electronic surveillance of the same or similar scope.

(b)

In such case, the Attorney General shall—

(1)

transmit within 5 days of the initiation of electronic surveillance pursuant to this section under seal to the court established under section 103(a) a copy of a certification made under section 105B(b)(1)(B). Such certification shall be maintained under security measures established by the Chief Justice of the United States and the Attorney General, in consultation with the Director of National Intelligence, and shall remain sealed except upon motion of the Government;

(2)

submit an application for the approval of such electronic surveillance to the court established under section 103(a) as soon as practicable, but in no event more than 10 days after the initiation of the electronic surveillance; and

(3)

the court shall act on such application in accordance with section 105B within 30 days after receiving an application under this subsection. The court may grant one or more extensions of not more than 30 days, if the court determines that additional time is needed. Any electronic surveillance subsequent to the court's action shall be conducted only if approved in accordance with section 105B. If the application is disapproved, the data collected may be used or disclosed only as authorized by the court.

(c)

Specific persons and places not required

A certification under subsection (a) is not required to identify—

(1)

the person or foreign power against whom the electronic surveillance will be directed; or

(2)

the specific facilities, places, premises, or property at which the electronic surveillance will be directed or conducted.

(d)

Directive

With respect to an authorization of electronic surveillance under this section, the Attorney General, in consultation with the Director of National Intelligence, may direct a specified communications service provider, custodian, or other specified person, to—

(1)

furnish the applicant forthwith with all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in a manner that will protect the secrecy of the electronic surveillance and produce a minimum of interference with the services that provider, custodian, or other person is providing; and

(2)

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

(e)

Failure To comply

In the case of a failure to comply with a directive issued pursuant to subsection (e), the Attorney General, in consultation with the Director of National Intelligence, may invoke the aid of the court established under section 103(a) to compel compliance with the directive, and the court shall issue an order requiring the person to comply with the directive unless the court finds that the directive does not meet the requirements of this section or is otherwise unlawful. Failure to obey an order of the court may be punished by the court as contempt of court. Any process under this section may be served in any judicial district in which the person may be found.

(f)

Pendency of appeal

With the approval of a court of competent jurisdiction, the Government may continue any electronic surveillance affected by a directive issued under this section during the pendency of consideration of an application submitted under section 105B, and any appeal process, including the period during which a petition for writ of certiorari may be pending and the period of any review by the Supreme Court of the United States.

105D.

Report to Congress

Report to Congress

Not later than four months after the date of the enactment of this Act, the Inspector General of the Department of Justice, in coordination with the Inspector General of the Office of the Director of National Intelligence and the Inspector General of the National Security Agency, shall inform, in a manner consistent with the national security, the Select Committee on Intelligence of the Senate, the Permanent Select Committee on Intelligence of the House of Representatives, the Committee on the Judiciary of the Senate, and the Committee on the Judiciary of the House of Representatives, concerning electronic surveillance under this section during the previous four-month period. Among the elements of each report made under this section shall be—

(1)

an assessment of whether the Act is functioning as intended and the degree to which the program is resulting in the collection of communications that originate or terminate inside the United States;

(2)

a description of the incidents of non-compliance with a directive issued by the Attorney General under section 105C;

(3)

a copy of any guidelines and procedures implementing this Act, including the guidelines established pursuant to section 105B(d);

(4)

a description of any incidents of non-compliance by an element of the Intelligence Community with guidelines or procedures established for determining that the electronic surveillance authorized by the Attorney General and Director of National Intelligence directed at persons reasonably believed to be outside the United States;

(5)

a description of any incidents of non-compliance with respect to minimization procedures and approval requirements concerning U.S. persons; and

(6)

the number of certifications and directives issued under section 105C during the reporting period.

.

(b)

Technical and conforming amendment

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 105 the following:

Sec. 105A. Clarification of surveillance of persons outside the United States.

Sec. 105B. Additional procedure for court approval authorizing certain electronic surveillance.

Sec. 105C. Immediate authorization of certain electronic surveillance.

Sec. 105D. Report to Congress.

.

3.

Effective date; transition procedures

(a)

Except as otherwise provided, the amendments made by this Act shall take effect immediately after the date of the enactment of this Act.

(b)

Notwithstanding any other provision of this Act, any order in effect on the date of enactment of this Act issued pursuant to the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) shall remain in effect until the date of expiration of such order, and, at the request of the applicant, the court established under section 103(a) of such Act (50 U.S.C. 1803(a)) shall reauthorize such order as long as the facts and circumstances continue to justify issuance of such order under the provisions of the Foreign Intelligence Surveillance Act of 1978, as in effect on the day before the applicable effective date of this Act. The Government also may file new applications, and the court established under section 103(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a)) shall enter orders granting such applications pursuant to such Act, as long as the application meets the requirements set forth under the provisions of such Act as in effect on the day before the effective date of this Act. At the request of the applicant, the court established under section 103(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a)), shall extinguish any extant authorization to conduct electronic surveillance or physical search entered pursuant to such Act. Any electronic surveillance or physical search conducted pursuant to an order entered under this subsection shall be subject to the provisions of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), as in effect on the day before the effective date of this Act.

4.

Sunset

(a)

Except as provided in subsections (b) and (c) the amendments made by this Act shall cease to have force or effect 180 days after the date of enactment of this Act.

(b)

Any order under section 105B of the Foreign Intelligence Surveillance Act of 1978, as added by this Act, in effect on the date described in paragraph (1) shall continue in effect until the date of the expiration of such order.

(c)

The expiration of amendments pursuant to subsection (a) shall not have any effect upon the liability of any party under subsection (e) of section 105B. Notwithstanding subsection (a), subsection (e) of section 105B shall remain in effect with regard to action taken in accordance with sections 105A, B, C, and D.

August 3, 2007

Read twice, considered, read the third time, and failed of passage

August 3, 2007

Ordered to be placed on the calendar