[Congressional Bills 110th Congress]
[From the U.S. Government Printing Office]
[S. 2248 Referral Instructions Senate (RIS)]
110th CONGRESS
1st Session
S. 2248
[Report No. 110-209]
To amend the Foreign Intelligence Surveillance Act of 1978, to
modernize and streamline the provisions of that Act, and for other
purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
October 26, 2007
Mr. Rockefeller, from the Select Committee on Intelligence, reported
the following original bill; which was read twice and placed on the
calendar
November 1, 2007
Referred to the Committee on the Judiciary pursuant to section 3(b) of
S. Res. 400, 94th Congress, as amended by S. Res. 445, 108th Congress,
for a period not to exceed 10 days of session
_______________________________________________________________________
A BILL
To amend the Foreign Intelligence Surveillance Act of 1978, to
modernize and streamline the provisions of that Act, and for other
purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Foreign
Intelligence Surveillance Act of 1978 Amendments Act of 2007'' or the
``FISA Amendments Act of 2007''.
(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. Targeting the communications of certain persons outside the
United States.
Sec. 102. Statement of exclusive means by which electronic surveillance
and interception of domestic 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. Technical and conforming amendments.
TITLE II--PROTECTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS
Sec. 201. Definitions.
Sec. 202. Limitations on civil actions for electronic communication
service providers.
Sec. 203. Procedures for implementing statutory defenses under the
Foreign Intelligence Surveillance Act of
1978.
Sec. 204. Preemption of State investigations.
Sec. 205. Technical amendments.
TITLE III--OTHER PROVISIONS
Sec. 301. Severability.
Sec. 302. Effective date; repeal; transition procedures.
TITLE I--FOREIGN INTELLIGENCE SURVEILLANCE
SEC. 101. TARGETING THE COMMUNICATIONS OF 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 after title VI the following new title:
``TITLE VII--ADDITIONAL PROCEDURES FOR TARGETING COMMUNICATIONS OF
CERTAIN PERSONS OUTSIDE THE UNITED STATES
``SEC. 701. LIMITATION ON DEFINITION OF ELECTRONIC SURVEILLANCE.
``Nothing in the definition of electronic surveillance under
section 101(f) shall be construed to encompass surveillance that is
targeted in accordance with this title at a person reasonably believed
to be located outside the United States.
``SEC. 702. DEFINITIONS.
``(a) In General.--The terms `agent of a foreign power', `Attorney
General', `contents', `electronic surveillance', `foreign intelligence
information', `foreign power', `minimization procedures', `person',
`United States', and `United States person' shall 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 by 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 by 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 communications
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) Element of the intelligence community.--The term
`element of the intelligence community' means an element of the
intelligence community specified in or designated under section
3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)).
``SEC. 703. PROCEDURES FOR ACQUIRING THE COMMUNICATIONS OF CERTAIN
PERSONS OUTSIDE THE UNITED STATES.
``(a) Authorization.--Notwithstanding any other law, the Attorney
General and the Director of National Intelligence may authorize
jointly, for periods of up to 1 year, 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 outside the United States if the purpose of such
acquisition is to target for surveillance a particular, known
person reasonably believed to be in the United States, except
in accordance with title I; and
``(3) shall be conducted in a manner consistent with the
fourth amendment to the Constitution of the United States.
``(c) United States Persons Located Outside the United States.--
``(1) Acquisition inside the united states of united states
persons outside the united states.--An acquisition authorized
by subsection (a) that occurs inside the United States may not
target a United States person except in accordance with the
provisions of title I.
``(2) Acquisition outside the united states of united
states persons outside the united states.--An acquisition by an
electronic, mechanical, or other surveillance device outside
the United States may not intentionally target a United States
person reasonably believed to be outside the United States to
acquire the contents of a wire or radio communication sent by
or intended to be received by that United States person under
circumstances in which a person has a reasonable expectation of
privacy and a warrant would be required for law enforcement
purposes if the technique were used inside the United States
unless--
``(A) the Attorney General or the Attorney
General's designee submits an application to the
Foreign Intelligence Surveillance Court that includes a
statement of the facts and circumstances relied upon by
the applicant to justify the Attorney General's belief
that the target of the acquisition is a foreign power
or an agent of a foreign power; and
``(B) the Foreign Intelligence Surveillance Court--
``(i) finds on the basis of the facts
submitted by the applicant there is probable
cause to believe that the target of the
electronic surveillance is a foreign power or
an agent of a foreign power; and
``(ii) issues an ex parte order as
requested or as modified approving the
targeting of that United States person.
``(3) Procedures.--
``(A) Submittal to foreign intelligence
surveillance court.--Not later than 30 days after the
date of the enactment of this title, the Attorney
General shall submit to the Foreign Intelligence
Surveillance Court the procedures to be utilized in
determining whether a target reasonably believed to be
outside the United States is a United States person.
``(B) Approval by foreign intelligence surveillance
court.--The procedures submitted under subparagraph (A)
shall be utilized as described in that subparagraph
only upon the approval of the Foreign Intelligence
Surveillance Court.
``(C) Utilization in targeting.--Any targeting of
persons authorized by subsection (a) shall utilize the
procedures submitted under subparagraph (A) as approved
by the Foreign Intelligence Surveillance Court under
subparagraph (B).
``(d) Conduct of Acquisition.--An acquisition authorized under
subsection (a) may be conducted only in accordance with--
``(1) a certification made by the Attorney General and the
Director of National Intelligence pursuant to subsection (g);
and
``(2) the targeting and minimization procedures required
pursuant to subsections (e) and (f).
``(e) 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
ensure that any acquisition authorized under subsection (a) is
limited to targeting persons reasonably believed to be located
outside the United States.
``(2) Judicial review.--The procedures referred to in
paragraph (1) shall be subject to judicial review pursuant to
subsection (i).
``(f) Minimization Procedures.--
``(1) Requirement to adopt.--The Attorney General, in
consultation with the Director of National Intelligence, shall
adopt, consistent with the requirements of section 101(h),
minimization procedures for acquisitions authorized under
subsection (a).
``(2) Judicial review.--The minimization procedures
required by this subsection shall be subject to judicial review
pursuant to subsection (i).
``(g) Certification.--
``(1) In general.--
``(A) Requirement.--Subject to subparagraph (B),
prior to the initiation of an acquisition authorized
under subsection (a), the Attorney General and the
Director of National Intelligence shall provide, under
oath, a written certification, as described in this
subsection.
``(B) Exception.--If the Attorney General and the
Director of National Intelligence determine that
immediate action by the Government is required and time
does not permit the preparation of a certification
under this subsection prior to the initiation of an
acquisition, the Attorney General and the Director of
National Intelligence shall prepare such certification,
including such determination, as soon as possible but
in no event more than 168 hours after such
determination is made.
``(2) Requirements.--A certification made under this
subsection shall--
``(A) attest that--
``(i) there are reasonable procedures in
place for determining that the acquisition
authorized under subsection (a) is targeted at
persons reasonably believed to be located
outside the United States and that such
procedures have been approved by, or will
promptly be submitted for approval by, the
Foreign Intelligence Surveillance Court
pursuant to subsection (i);
``(ii) the procedures referred to in clause
(i) are consistent with the requirements of the
fourth amendment to the Constitution of the
United States and do not permit the intentional
targeting of any person who is known at the
time of acquisition to be located in the United
States;
``(iii) a significant purpose of the
acquisition is to obtain foreign intelligence
information;
``(iv) the minimization procedures to be
used with respect to such acquisition--
``(I) meet the definition of
minimization procedures under section
101(h); and
``(II) have been approved by, or
will promptly be submitted for approval
by, the Foreign Intelligence
Surveillance Court pursuant to
subsection (i);
``(v) the acquisition involves obtaining
the foreign intelligence information from or
with the assistance of an electronic
communication service provider; and
``(vi) the acquisition does not constitute
electronic surveillance, as limited by section
701; and
``(B) 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 consent of the Senate; or
``(ii) the head of any element of the
intelligence community.
``(3) Limitation.--A certification made under this
subsection is not required to identify the specific facilities,
places, premises, or property at which the acquisition
authorized under subsection (a) will be directed or conducted.
``(4) Submission to the court.--The Attorney General shall
transmit a copy of a certification made under this subsection,
and any supporting affidavit, under seal to the Foreign
Intelligence Surveillance Court as soon as possible, but in no
event more than 5 days after such certification is made. Such
certification shall be maintained under security measures
adopted by the Chief Justice of the United States and the
Attorney General, in consultation with the Director of National
Intelligence.
``(5) Review.--The certification required by this
subsection shall be subject to judicial review pursuant to
subsection (i).
``(h) 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; 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
pursuant to paragraph (1).
``(3) Release from liability.--Notwithstanding any other
law, 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 challenge the
directive by filing a petition with the Foreign
Intelligence Surveillance Court.
``(B) Assignment.--The presiding judge of the Court
shall assign the petition filed under subparagraph (A)
to 1 of the judges serving in the pool established by
section 103(e)(1) not later than 24 hours after the
filing of the petition.
``(C) Standards for review.--A judge considering a
petition to modify or set aside a directive may grant
such petition only if the judge finds that the
directive does not meet the requirements of this
section or is otherwise unlawful. If the judge does not
modify or set aside the directive, the judge shall
immediately affirm such directive, and order the
recipient to comply with the directive. The judge shall
provide a written statement for the record of the
reasons for a determination under this paragraph.
``(D) Continued effect.--Any directive not
explicitly modified or set aside under this paragraph
shall remain in full effect.
``(5) Enforcement of directives.--
``(A) Order to compel.--In the case of a failure to
comply with a directive issued pursuant to paragraph
(1), the Attorney General may file a petition for an
order to compel compliance with the directive with the
Foreign Intelligence Surveillance Court.
``(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 by
section 103(e)(1) not later than 24 hours after the
filing of the petition.
``(C) Standards for review.--A judge considering a
petition shall issue an order requiring the electronic
communication service provider to comply with the
directive if the judge finds that the directive was
issued in accordance with paragraph (1), 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
of the Court 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
the decision issued pursuant to paragraph (4) or (5)
not later than 7 days after the issuance of such
decision. The Court of Review shall have jurisdiction
to consider such a petition and shall provide a written
statement for the record of the reasons for a decision
under this paragraph.
``(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 the 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.--
``(1) In general.--
``(A) Review by the foreign intelligence
surveillance court.--The Foreign Intelligence
Surveillance Court shall have jurisdiction to review
any certification required by subsection (d) or
targeting and minimization procedures adopted pursuant
to subsections (e) and (f).
``(B) Submission to the court.--The Attorney
General shall submit to the Court any such
certification or procedure, or amendment thereto, not
later than 5 days after making or amending the
certification or adopting or amending the procedures.
``(2) Certifications.--The Court shall review a
certification provided under subsection (g) to determine
whether the certification contains all the required elements.
``(3) Targeting procedures.--The Court shall review the
targeting procedures required by subsection (e) to assess
whether the procedures are reasonably designed to ensure that
the acquisition authorized under subsection (a) is limited to
the targeting of persons reasonably believed to be located
outside the United States.
``(4) Minimization procedures.--The Court shall review the
minimization procedures required by subsection (f) to assess
whether such procedures meet the definition of minimization
procedures under section 101(h).
``(5) Orders.--
``(A) Approval.--If the Court finds that a
certification required by subsection (g) contains all
of the required elements and that the targeting and
minimization procedures required by subsections (e) and
(f) 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 continued use of the
procedures for the acquisition authorized under
subsection (a).
``(B) Correction of deficiencies.--If the Court
finds that a certification required by subsection (g)
does not contain all of the required elements, or that
the procedures required by subsections (e) and (f) 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 the Court issues the order; or
``(ii) cease the acquisition authorized
under subsection (a).
``(C) Requirement for written statement.--In
support of its orders under this subsection, the Court
shall provide, simultaneously with the orders, for the
record a written statement of its reasons.
``(6) Appeal.--
``(A) Appeal to the court of review.--The
Government may appeal any order under this section to
the Foreign Intelligence Surveillance Court of Review,
which shall have jurisdiction to review such order. For
any decision 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 its reasons.
``(B) Continuation of acquisition pending rehearing
or appeal.--Any acquisitions affected by an order under
paragraph (5)(B) may continue--
``(i) during the pending of any rehearing
of the order by the Court en banc; and
``(ii) during the pendency of any appeal of
the order to the Foreign Intelligence
Surveillance Court of Review.
``(C) 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.
``(j) Judicial Proceedings.--Judicial proceedings under this
section shall be conducted as expeditiously as possible.
``(k) Maintenance of Records.--
``(1) Standards.--A record of a proceeding under this
section, including petitions filed, orders granted, and
statements of reasons for decision, shall be maintained 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.--A directive made or an order
granted under this section shall be retained for a period of
not less than 10 years from the date on which such directive or
such order is made.
``(l) Oversight.--
``(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 required by subsections (e) and (f) and
shall submit each such assessment to--
``(A) the Foreign Intelligence Surveillance Court;
and
``(B) the congressional intelligence committees.
``(2) Agency assessment.--The Inspectors General of the
Department of Justice and of any element of the intelligence
community authorized to acquire foreign intelligence
information under subsection (a)--
``(A) are authorized to review the compliance of
their agency or element with the targeting and
minimization procedures required by subsections (e) and
(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 the number of persons located in the United
States whose communications were reviewed; and
``(D) shall provide each such review to--
``(i) the Attorney General;
``(ii) the Director of National
Intelligence; and
``(iii) the congressional intelligence
committees.
``(3) Annual review.--
``(A) Requirement to conduct.--The head of an
element of the intelligence community conducting an
acquisition authorized under subsection (a) shall
direct the element to 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 such 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;
and
``(iii) the number of targets that were
later determined to be located in the United
States and the number of persons located in the
United States whose communications were
reviewed.
``(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 or the application
of the minimization procedures to a particular
acquisition authorized under subsection (a).
``(C) Provision of review to foreign intelligence
surveillance court.--The head of each element of the
intelligence community that conducts an annual review
under subparagraph (A) shall provide such review to the
Foreign Intelligence Surveillance Court.
``(4) Reports to congress.--
``(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, the
Committee on the Judiciary of the Senate, and the
Committee on the Judiciary of the House of
Representatives, concerning the implementation of this
Act.
``(B) Content.--Each report made under subparagraph
(A) shall include--
``(i) any certifications made under
subsection (g) during the reporting period;
``(ii) any directives issued under
subsection (h) during the reporting period;
``(iii) the judicial review during the
reporting period of any such certifications and
targeting and minimization procedures utilized
with respect to such acquisition, including a
copy of any order or pleading in connection
with such review that contains a significant
legal interpretation of the provisions of this
Act;
``(iv) any actions taken to challenge or
enforce a directive under paragraphs (4) or (5)
of subsections (h);
``(v) any compliance reviews conducted by
the Department of Justice or the Office of the
Director of National Intelligence of
acquisitions authorized under subsection (a);
``(vi) a description of any incidents of
noncompliance with a directive issued by the
Attorney General and the Director of National
Intelligence under subsection (h), including--
``(I) incidents of noncompliance by
an element of the intelligence
community with procedures adopted
pursuant to subsections (e) and (f);
and
``(II) incidents of noncompliance
by a specified person to whom the
Attorney General and Director of
National Intelligence issued a
directive under subsection (h);
``(vii) any procedures implementing this
section; and
``(viii) any annual review conducted
pursuant to paragraph (3).
``SEC. 704. USE OF 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, except
for the purposes of subsection (j) of such section.''.
(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 FOR TARGETING COMMUNICATIONS OF
CERTAIN PERSONS OUTSIDE THE UNITED STATES
``Sec. 701. Limitation on definition of electronic surveillance.
``Sec. 702. Definitions.
``Sec. 703. Procedures for acquiring the communications of certain
persons outside the United States.
``Sec. 704. Use of information acquired under section 703.''.
(c) Sunset.--
(1) In general.--Except as provided in paragraph (2), the
amendments made by subsections (a)(2) and (b) shall cease to
have effect on December 31, 2013.
(2) Continuing applicability.--Section 703(h)(3) of the
Foreign Intelligence Surveillance Act of 1978 (as amended by
subsection (a)) shall remain in effect with respect to any
directive issued pursuant to section 703(h) of that Act (as so
amended) during the period such directive was in effect. The
use of information acquired by an acquisition conducted under
section 703 of that Act (as so amended) shall continue to be
governed by the provisions of section 704 of that Act (as so
amended).
SEC. 102. STATEMENT OF EXCLUSIVE MEANS BY WHICH ELECTRONIC SURVEILLANCE
AND INTERCEPTION OF DOMESTIC 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:
``statement of exclusive means by which electronic surveillance and
interception of domestic communications may be conducted
``Sec. 112. Chapters 119 and 121 of title 18, United States Code,
and this Act shall be the exclusive means by which electronic
surveillance (as defined in section 101(f), regardless of the
limitation of section 701) and the interception of domestic wire, oral,
or electronic communications may be conducted.''.
(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 by adding after the item relating to section 111, the
following:
``Sec. 112. Statement of exclusive means by which electronic
surveillance and interception of domestic
communications may be conducted.''.
SEC. 103. SUBMITTAL TO CONGRESS OF CERTAIN COURT ORDERS UNDER THE
FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.
(a) Inclusion of Certain Orders in Semi-Annual 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 new
subsection:
``(c) The Attorney General shall submit to the committees of
Congress referred to in subsection (a) a copy of any decision, order,
or opinion issued by the court established under section 103(a) or the
court of review established under section 103(b) that includes
significant construction or interpretation of any provision of this Act
not later than 45 days after such decision, order, or opinion is
issued.''.
SEC. 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''.
SEC. 105. ISSUANCE OF AN ORDER.
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) 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) determines that the factual basis for 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 168 hours 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 168 hours 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).''.
SEC. 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''.
SEC. 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); and
(B) by redesignating paragraphs (2) through (5) as
paragraphs (1) through (4), respectively; 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) 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) 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 168 hours 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 168 hours 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)(A) 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.
``(B) The Attorney General shall assess compliance with the
requirements of subparagraph (A).''.
(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)''.
SEC. 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 ``168 hours''; and
(2) in subsection (c)(1)(C), by striking ``48 hours'' and
inserting ``168 hours''.
SEC. 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
703(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.''.
SEC. 110. TECHNICAL AND CONFORMING AMENDMENTS.
Section 103(e) of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1803(e)) is amended--
(1) in paragraph (1), by striking ``105B(h) or 501(f)(1)''
and inserting ``501(f)(1) or 703''; and
(2) in paragraph (2), by striking ``105B(h) or 501(f)(1)''
and inserting ``501(f)(1) or 703''.
TITLE II--PROTECTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS
SEC. 201. DEFINITIONS.
In this title:
(1) Assistance.--The term ``assistance'' means the
provision of, or the provision of access to, information
(including communication contents, communications records, or
other information relating to a customer or communication),
facilities, or another form of assistance.
(2) Contents.--The term ``contents'' has the meaning given
that term in section 101(n) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801(n)).
(3) Covered civil action.--The term ``covered civil
action'' means a civil action filed in a Federal or State court
that--
(A) alleges that an electronic communication
service provider furnished assistance to an element of
the intelligence community; and
(B) seeks monetary or other relief from the
electronic communication service provider related to
the provision of such assistance.
(4) Electronic communication service provider.--The term
``electronic communication service provider'' means--
(A) a telecommunications carrier, as that term is
defined in section 3 of the Communications Act of 1934
(47 U.S.C. 153);
(B) a provider of an electronic communication
service, as that term is defined in section 2510 of
title 18, United States Code;
(C) a provider of a remote computing service, as
that term is defined in section 2711 of title 18,
United States Code;
(D) any other communication service provider who
has access to wire or electronic communications either
as such communications are transmitted or as such
communications are stored;
(E) a parent, subsidiary, affiliate, successor, or
assignee of an entity described in subparagraph (A),
(B), (C), or (D); or
(F) an officer, employee, or agent of an entity
described in subparagraph (A), (B), (C), (D), or (E).
(5) Element of the intelligence community.--The term
``element of the intelligence community'' means an element of
the intelligence community specified in or designated under
section 3(4) of the National Security Act of 1947 (50 U.S.C.
401a(4)).
SEC. 202. LIMITATIONS ON CIVIL ACTIONS FOR ELECTRONIC COMMUNICATION
SERVICE PROVIDERS.
(a) Limitations.--
(1) In general.--Notwithstanding any other provision of
law, a covered civil action shall not lie or be maintained in a
Federal or State court, and shall be promptly dismissed, if the
Attorney General certifies to the court that--
(A) the assistance alleged to have been provided by
the electronic communication service provider was--
(i) in connection with an intelligence
activity involving communications that was--
(I) authorized by the President
during the period beginning on
September 11, 2001, and ending on
January 17, 2007; and
(II) designed to detect or prevent
a terrorist attack, or activities in
preparation for a terrorist attack,
against the United States; and
(ii) described in a written request or
directive from the Attorney General or the head
of an element of the intelligence community (or
the deputy of such person) to the electronic
communication service provider indicating that
the activity was--
(I) authorized by the President;
and
(II) determined to be lawful; or
(B) the electronic communication service provider
did not provide the alleged assistance.
(2) Review.--A certification made pursuant to paragraph (1)
shall be subject to review by a court for abuse of discretion.
(b) Review of Certifications.--If the Attorney General files a
declaration under section 1746 of title 28, United States Code, that
disclosure of a certification made pursuant to subsection (a) would
harm the national security of the United States, the court shall--
(1) review such certification in camera and ex parte; and
(2) limit any public disclosure concerning such
certification, including any public order following such an ex
parte review, to a statement that the conditions of subsection
(a) have been met, without disclosing the subparagraph of
subsection (a)(1) that is the basis for the certification.
(c) Nondelegation.--The authority and duties of the Attorney
General under this section shall be performed by the Attorney General
(or Acting Attorney General) or a designee in a position not lower than
the Deputy Attorney General.
(d) Civil Actions in State Court.--A covered civil action that is
brought in a State court shall be deemed to arise under the
Constitution and laws of the United States and shall be removable under
section 1441 of title 28, United States Code.
(e) Rule of Construction.--Nothing in this section may be construed
to limit any otherwise available immunity, privilege, or defense under
any other provision of law.
(f) Effective Date and Application.--This section shall apply to
any covered civil action that is pending on or filed after the date of
enactment of this Act.
SEC. 203. PROCEDURES FOR IMPLEMENTING STATUTORY DEFENSES UNDER THE
FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.
The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801
et seq.), as amended by section 101, is further amended by adding after
title VII the following new title:
``TITLE VIII--PROTECTION OF PERSONS ASSISTING THE GOVERNMENT
``SEC. 801. DEFINITIONS.
``In this title:
``(1) Assistance.--The term `assistance' means the
provision of, or the provision of access to, information
(including communication contents, communications records, or
other information relating to a customer or communication),
facilities, or another form of assistance.
``(2) Attorney general.--The term `Attorney General' has
the meaning give that term in section 101(g).
``(3) Contents.--The term `contents' has the meaning given
that term in section 101(n).
``(4) Electronic communication service provider.--The term
`electronic communication service provider' means--
``(A) a telecommunications carrier, as that term is
defined in section 3 of the Communications Act of 1934
(47 U.S.C. 153);
``(B) a provider of electronic communications
service, as that term is defined in section 2510 of
title 18, United States Code;
``(C) a provider of a remote computing service, as
that term is defined in section 2711 of title 18,
United States Code;
``(D) any other communication service provider who
has access to wire or electronic communications either
as such communications are transmitted or as such
communications are stored;
``(E) a parent, subsidiary, affiliate, successor,
or assignee of an entity described in subparagraph (A),
(B), (C), or (D); or
``(F) an officer, employee, or agent of an entity
described in subparagraph (A), (B), (C), (D), or (E).
``(5) Element of the intelligence community.--The term
`element of the intelligence community' means an element of the
intelligence community as specified or designated under section
3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)).
``(6) Person.--The term `person' means--
``(A) an electronic communication service provider;
or
``(B) a landlord, custodian, or other person who
may be authorized or required to furnish assistance
pursuant to--
``(i) an order of the court established
under section 103(a) directing such assistance;
``(ii) a certification in writing under
section 2511(2)(a)(ii)(B) or 2709(b) of title
18, United States Code; or
``(iii) a directive under section
102(a)(4), 105B(e), as in effect on the day
before the date of the enactment of the FISA
Amendments Act of 2007 or 703(h).
``(7) State.--The term `State' means any State, political
subdivision of a State, the Commonwealth of Puerto Rico, the
District of Columbia, and any territory or possession of the
United States, and includes any officer, public utility
commission, or other body authorized to regulate an electronic
communication service provider.
``SEC. 802. PROCEDURES FOR IMPLEMENTING STATUTORY DEFENSES.
``(a) Requirement for Certification.--
``(1) In general.--Notwithstanding any other provision of
law, no civil action may lie or be maintained in a Federal or
State court against any person for providing assistance to an
element of the intelligence community, and shall be promptly
dismissed, if the Attorney General certifies to the court
that--
``(A) any assistance by that person was provided
pursuant to an order of the court established under
section 103(a) directing such assistance;
``(B) any assistance by that person was provided
pursuant to a certification in writing under section
2511(2)(a)(ii)(B) or 2709(b) of title 18, United States
Code;
``(C) any assistance by that person was provided
pursuant to a directive under sections 102(a)(4),
105B(e), as in effect on the day before the date of the
enactment of the FISA Amendments Act of 2007, or 703(h)
directing such assistance; or
``(D) the person did not provide the alleged
assistance.
``(2) Review.--A certification made pursuant to paragraph
(1) shall be subject to review by a court for abuse of
discretion.
``(b) Limitations on Disclosure.--If the Attorney General files a
declaration under section 1746 of title 28, United States Code, that
disclosure of a certification made pursuant to subsection (a) would
harm the national security of the United States, the court shall--
``(1) review such certification in camera and ex parte; and
``(2) limit any public disclosure concerning such
certification, including any public order following such an ex
parte review, to a statement that the conditions of subsection
(a) have been met, without disclosing the subparagraph of
subsection (a)(1) that is the basis for the certification.
``(c) Removal.--A civil action against a person for providing
assistance to an element of the intelligence community that is brought
in a State court shall be deemed to arise under the Constitution and
laws of the United States and shall be removable under section 1441 of
title 28, United States Code.
``(d) Relationship to Other Laws.--Nothing in this section may be
construed to limit any otherwise available immunity, privilege, or
defense under any other provision of law.
``(e) Applicability.--This section shall apply to a civil action
pending on or filed after the date of enactment of the FISA Amendments
Act of 2007.''.
SEC. 204. PREEMPTION OF STATE INVESTIGATIONS.
Title VIII of the Foreign Intelligence Surveillance Act (50 U.S.C.
1801 et seq.), as added by section 203 of this Act, is amended by
adding at the end the following new section:
``SEC. 803. PREEMPTION.
``(a) In General.--No State shall have authority to--
``(1) conduct an investigation into an electronic
communication service provider's alleged assistance to an
element of the intelligence community;
``(2) require through regulation or any other means the
disclosure of information about an electronic communication
service provider's alleged assistance to an element of the
intelligence community;
``(3) impose any administrative sanction on an electronic
communication service provider for assistance to an element of
the intelligence community; or
``(4) commence or maintain a civil action or other
proceeding to enforce a requirement that an electronic
communication service provider disclose information concerning
alleged assistance to an element of the intelligence community.
``(b) Suits by the United States.--The United States may bring suit
to enforce the provisions of this section.
``(c) Jurisdiction.--The district courts of the United States shall
have jurisdiction over any civil action brought by the United States to
enforce the provisions of this section.
``(d) Application.--This section shall apply to any investigation,
action, or proceeding that is pending on or filed after the date of
enactment of the FISA Amendments Act of 2007.''.
SEC. 205. TECHNICAL AMENDMENTS.
The table of contents in the first section of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), 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.''.
TITLE III--OTHER PROVISIONS
SEC. 301. 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, any such amendments, and of
the application of such provisions to other persons and circumstances
shall not be affected thereby.
SEC. 302. EFFECTIVE DATE; REPEAL; TRANSITION PROCEDURES.
(a) In General.--Except as provided in subsection (c), the
amendments made by this Act shall take effect on the date of the
enactment of this Act.
(b) Repeal.--
(1) In general.--Except as provided in subsection (c),
sections 105A, 105B, and 105C of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1805a, 1805b, and 1805c)
are repealed.
(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 striking the items
relating to sections 105A, 105B, and 105C.
(c) Transitions Procedures.--
(1) Protection from liability.--Notwithstanding subsection
(b)(1), subsection (l) of section 105B of the Foreign
Intelligence Surveillance Act of 1978 shall remain in effect
with respect to any directives issued pursuant to such section
105B for information, facilities, or assistance provided during
the period such directive was or is in effect.
(2) Orders in effect.--
(A) Orders in effect on date of enactment.--
Notwithstanding any other provision of this Act or of
the Foreign Intelligence Surveillance Act of 1978--
(i) any order in effect on the date of
enactment of this Act issued pursuant to the
Foreign Intelligence Surveillance Act of 1978
or section 6(b) of the Protect America Act of
2007 (Public Law 110-55; 121 Stat. 556) shall
remain in effect until the date of expiration
of such order; and
(ii) 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 reauthorize such
order if the facts and circumstances continue
to justify issuance of such order under the
provisions of such Act, as in effect on the day
before the date of the enactment of the Protect
America Act of 2007, except as amended by
sections 102, 103, 104, 105, 106, 107, 108, and
109 of this Act.
(B) Orders in effect on december 31, 2013.--Any
order issued under title VII of the Foreign
Intelligence Surveillance Act of 1978, as amended by
section 101 of this Act, in effect on December 31,
2013, shall continue in effect until the date of the
expiration of such order. Any such order shall be
governed by the applicable provisions of the Foreign
Intelligence Surveillance Act of 1978, as so amended.
(3) Authorizations and directives in effect.--
(A) Authorizations and directives in effect on date
of enactment.--Notwithstanding any other provision of
this Act or of the Foreign Intelligence Surveillance
Act of 1978, any authorization or directive in effect
on the date of the enactment of this Act issued
pursuant to the Protect America Act of 2007, or any
amendment made by that Act, shall remain in effect
until the date of expiration of such authorization or
directive. Any such authorization or directive shall be
governed by the applicable provisions of the Protect
America Act of 2007 (121 Stat. 552), and the amendment
made by that Act, and, except as provided in paragraph
(4) of this subsection, any acquisition pursuant to
such authorization or directive shall be deemed not to
constitute electronic surveillance (as that term is
defined in section 101(f) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801(f)), as
construed in accordance with section 105A of the
Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1805a)).
(B) Authorizations and directives in effect on
december 31, 2013.--Any authorization or directive
issued under title VII of the Foreign Intelligence
Surveillance Act of 1978, as amended by section 101 of
this Act, in effect on December 31, 2013, shall
continue in effect until the date of the expiration of
such authorization or directive. Any such authorization
or directive shall be governed by the applicable
provisions of the Foreign Intelligence Surveillance Act
of 1978, as so amended, and, except as provided in
section 704 of the Foreign Intelligence Surveillance
Act of 1978, as so amended, any acquisition pursuant to
such authorization or directive shall be deemed not to
constitute electronic surveillance (as that term is
defined in section 101(f) of the Foreign Intelligence
Surveillance Act of 1978, to the extent that such
section 101(f) is limited by section 701 of the Foreign
Intelligence Surveillance Act of 1978, as so amended).
(4) Use of information acquired under protect america
act.--Information acquired from an acquisition conducted under
the Protect America Act of 2007, and the amendments made by
that Act, 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 that Act (50 U.S.C. 1806),
except for purposes of subsection (j) of such section.
(5) New orders.--Notwithstanding any other provision of
this Act or of the Foreign Intelligence Surveillance Act of
1978--
(A) the government may file an application for an
order under the Foreign Intelligence Surveillance Act
of 1978, as in effect on the day before the date of the
enactment of the Protect America Act of 2007, except as
amended by sections 102, 103, 104, 105, 106, 107, 108,
and 109 of this Act; and
(B) the court established under section 103(a) of
the Foreign Intelligence Surveillance Act of 1978 shall
enter an order granting such an application if the
application meets the requirements of such Act, as in
effect on the day before the date of the enactment of
the Protect America Act of 2007, except as amended by
sections 102, 103, 104, 105, 106, 107, 108, and 109 of
this Act.
(6) Extant authorizations.--At the request of the
applicant, the court established under section 103(a) of the
Foreign Intelligence Surveillance Act of 1978 shall extinguish
any extant authorization to conduct electronic surveillance or
physical search entered pursuant to such Act.
(7) Applicable provisions.--Any surveillance conducted
pursuant to an order entered pursuant to this subsection shall
be subject to the provisions of the Foreign Intelligence
Surveillance Act of 1978, as in effect on the day before the
date of the enactment of the Protect America Act of 2007,
except as amended by sections 102, 103, 104, 105, 106, 107,
108, and 109 of this Act.
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