PUBLIC LAW 110–55—AUG. 5, 2007

PROTECT AMERICA ACT OF 2007

121 STAT. 552 PUBLIC LAW 110–55—AUG. 5, 2007

Public Law 110–55

110th Congress

An Act

To amend the Foreign Intelligence Surveillance Act of 1978 to provide additional

procedures for authorizing certain acquisitions of foreign intelligence information

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.

This Act may be cited as the ‘‘Protect America Act of 2007’’.

SEC. 2. ADDITIONAL PROCEDURE FOR AUTHORIZING CERTAIN

ACQUISITIONS OF FOREIGN INTELLIGENCE INFORMATION.

The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.

1801 et seq.) is amended by inserting after section 105 the following:

‘‘CLARIFICATION OF ELECTRONIC SURVEILLANCE OF PERSONS OUTSIDE

THE UNITED STATES

‘‘SEC. 105A. Nothing in the definition of electronic surveillance

under section 101(f) shall be construed to encompass surveillance

directed at a person reasonably believed to be located outside of

the United States.

‘‘ADDITIONAL PROCEDURE FOR AUTHORIZING CERTAIN ACQUISITIONS

CONCERNING PERSONS LOCATED OUTSIDE THE UNITED STATES

‘‘SEC. 105B. (a) Notwithstanding any other law, the Director

of National Intelligence and the Attorney General, may for periods

of up to one year authorize the acquisition of foreign intelligence

information concerning persons reasonably believed to be outside

the United States if the Director of National Intelligence and the

Attorney General determine, based on the information provided

to them, that—

‘‘(1) there are reasonable procedures in place for determining that the acquisition of foreign intelligence information

under this section concerns persons reasonably believed to be

located outside the United States, and such procedures will

be subject to review of the Court pursuant to section 105C

of this Act;

‘‘(2) the acquisition does not constitute electronic surveillance;

‘‘(3) the acquisition involves obtaining the 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

50 USC 1805b.

50 USC 1805a.

Protect America

Act of 2007.

50 USC 1801

note.

Aug. 5, 2007

[S. 1927]

PUBLIC LAW 110–55—AUG. 5, 2007 121 STAT. 553

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;

‘‘(4) a significant purpose of the acquisition is to obtain

foreign intelligence information; and

‘‘(5) the minimization procedures to be used with respect

to such acquisition activity meet the definition of minimization

procedures under section 101(h).

‘‘This determination shall be in the form of a written certification, under oath, supported as appropriate by affidavit of appropriate officials in the national security field occupying positions

appointed by the President, by and with the consent of the Senate,

or the Head of any Agency of the Intelligence Community, unless

immediate action by the Government is required and time does

not permit the preparation of a certification. In such a case, the

determination of the Director of National Intelligence and the

Attorney General shall be reduced to a certification as soon as

possible but in no event more than 72 hours after the determination

is made.

‘‘(b) A certification under subsection (a) is not required to identify the specific facilities, places, premises, or property at which

the acquisition of foreign intelligence information will be directed.

‘‘(c) The Attorney General shall transmit as soon as practicable

under seal to the court established under section 103(a) a copy

of a certification made under subsection (a). 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 unless the certification is necessary to determine the legality

of the acquisition under section 105B.

‘‘(d) An acquisition under this section may be conducted only

in accordance with the certification of the Director of National

Intelligence and the Attorney General, or their oral instructions

if time does not permit the preparation of a certification, and

the minimization procedures adopted by the Attorney General. The

Director of National Intelligence and the Attorney General shall

assess compliance with such procedures and shall report such

assessments to the Permanent Select Committee on Intelligence

of the House of Representatives and the Select Committee on Intelligence of the Senate under section 108(a).

‘‘(e) With respect to an authorization of an acquisition under

section 105B, the Director of National Intelligence and Attorney

General may direct a person to—

‘‘(1) immediately provide the Government with all information, facilities, and assistance necessary to accomplish the

acquisition in such a manner as will protect the secrecy of

the acquisition and produce a minimum of interference with

the services that such person is providing to the target; and

‘‘(2) 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 person wishes to maintain.

‘‘(f) The Government shall compensate, at the prevailing rate,

a person for providing information, facilities, or assistance pursuant

to subsection (e).

‘‘(g) In the case of a failure to comply with a directive issued

pursuant to subsection (e), the Attorney General may invoke the

Reports.

Records.

Certification.

121 STAT. 554 PUBLIC LAW 110–55—AUG. 5, 2007

aid of the court established under section 103(a) to compel compliance with the directive. The court shall issue an order requiring

the person to comply with the directive if it finds that the directive

was issued in accordance with subsection (e) and is otherwise lawful.

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.

‘‘(h)(1)(A) A person receiving a directive issued pursuant to

subsection (e) may challenge the legality of that directive by filing

a petition with the pool established under section 103(e)(1).

‘‘(B) The presiding judge designated pursuant to section 103(b)

shall assign a petition filed under subparagraph (A) to one of

the judges serving in the pool established by section 103(e)(1).

Not later than 48 hours after the assignment of such petition,

the assigned judge shall conduct an initial review of the directive.

If the assigned judge determines that the petition is frivolous,

the assigned judge shall immediately deny the petition and affirm

the directive or any part of the directive that is the subject of

the petition. If the assigned judge determines the petition is not

frivolous, the assigned judge shall, within 72 hours, consider the

petition in accordance with the procedures established under section

103(e)(2) and provide a written statement for the record of the

reasons for any determination under this subsection.

‘‘(2) A judge considering a petition to modify or set aside a

directive may grant such petition only if the judge finds that such

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 such directive.

‘‘(3) Any directive not explicitly modified or set aside under

this subsection shall remain in full effect.

‘‘(i) The Government or a person receiving a directive reviewed

pursuant to subsection (h) may file a petition with the Court of

Review established under section 103(b) for review of the decision

issued pursuant to subsection (h) not later than 7 days after the

issuance of such decision. Such court of review shall have jurisdiction to consider such petitions and shall provide for the record

a written statement of the reasons for its decision. On petition

for a writ of certiorari by the Government or any person receiving

such directive, the record shall be transmitted under seal to the

Supreme Court, which shall have jurisdiction to review such decision.

‘‘(j) Judicial proceedings under this section shall be concluded

as expeditiously as possible. The record of proceedings, including

petitions filed, orders granted, and statements of reasons for decision, shall be maintained under security measures established by

the Chief Justice of the United States, in consultation with the

Attorney General and the Director of National Intelligence.

‘‘(k) 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.

‘‘(l) Notwithstanding any other law, no cause of action shall

lie in any court against any person for providing any information,

Petitions.

Records.

Records.

Deadline.

Deadline.

Records.

Deadline.

Petitions.

Courts.

PUBLIC LAW 110–55—AUG. 5, 2007 121 STAT. 555

facilities, or assistance in accordance with a directive under this

section.

‘‘(m) 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.’’.

SEC. 3. SUBMISSION TO COURT REVIEW AND ASSESSMENT OF PROCEDURES.

The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.

1801 et seq.) is amended by inserting after section 105B the following:

‘‘SUBMISSION TO COURT REVIEW OF PROCEDURES

‘‘SEC. 105C. (a) No later than 120 days after the effective

date of this Act, the Attorney General shall submit to the Court

established under section 103(a), the procedures by which the

Government determines that acquisitions conducted pursuant to

section 105B do not constitute electronic surveillance. The procedures submitted pursuant to this section shall be updated and

submitted to the Court on an annual basis.

‘‘(b) No later than 180 days after the effective date of this

Act, the court established under section 103(a) shall assess the

Government’s determination under section 105B(a)(1) that those

procedures are reasonably designed to ensure that acquisitions conducted pursuant to section 105B do not constitute electronic surveillance. The court’s review shall be limited to whether the Government’s determination is clearly erroneous.

‘‘(c) If the court concludes that the determination is not clearly

erroneous, it shall enter an order approving the continued use

of such procedures. If the court concludes that the determination

is clearly erroneous, it shall issue an order directing the Government to submit new procedures within 30 days or cease any acquisitions under section 105B that are implicated by the court’s order.

‘‘(d) The Government may appeal any order issued under subsection (c) to the court established under section 103(b). If such

court determines that the order 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. Any acquisitions affected by the

order issued under subsection (c) of this section may continue

during the pendency of any appeal, the period during which a

petition for writ of certiorari may be pending, and any review

by the Supreme Court of the United States.’’.

SEC. 4. REPORTING TO CONGRESS.

On a semi-annual basis the Attorney General shall inform

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

acquisitions under this section during the previous 6-month period.

Each report made under this section shall include—

(1) a description of any incidents of non-compliance with

a directive issued by the Attorney General and the Director

of National Intelligence under section 105B, to include—

Records.

Deadlines.

50 USC 1805c.

Records.

121 STAT. 556 PUBLIC LAW 110–55—AUG. 5, 2007

(A) incidents of non-compliance by an element of the

Intelligence Community with guidelines or procedures

established for determining that the acquisition of foreign

intelligence authorized by the Attorney General and

Director of National Intelligence concerns persons reasonably to be outside the United States; and

(B) incidents of noncompliance by a specified person

to whom the Attorney General and Director of National

Intelligence issue a directive under this section; and

(2) the number of certifications and directives issued during

the reporting period.

SEC. 5. TECHNICAL AMENDMENT AND CONFORMING AMENDMENTS.

(a) IN GENERAL.—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 ‘‘501(f)(1)’’ and inserting

‘‘105B(h) or 501(f)(1)’’; and

(2) in paragraph (2), by striking ‘‘501(f)(1)’’ and inserting

‘‘105B(h) or 501(f)(1)’’.

(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 inserting after the item relating

to section 105 the following:

‘‘105A. Clarification of electronic surveillance of persons outside the United States.

‘‘105B. Additional procedure for authorizing certain acquisitions concerning persons

located outside the United States.

‘‘105C. Submission to court review of procedures.’’.

SEC. 6. EFFECTIVE DATE; TRANSITION PROCEDURES.

(a) EFFECTIVE DATE.—Except as otherwise provided, the amendments made by this Act shall take effect immediately after the

date of the enactment of this Act.

(b) TRANSITION PROCEDURES.—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 surveillance 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.

50 USC 1803

note.

PUBLIC LAW 110–55—AUG. 5, 2007 121 STAT. 557

LEGISLATIVE HISTORY—S. 1927:

CONGRESSIONAL RECORD, Vol. 153 (2007):

Aug. 3, considered and passed Senate.

Aug. 4, considered and passed House.

Æ

(c) SUNSET.—Except as provided in subsection (d), sections 2,

3, 4, and 5 of this Act, and the amendments made by this Act,

shall cease to have effect 180 days after the date of the enactment

of this Act.

(d) AUTHORIZATIONS IN EFFECT.—Authorizations for the acquisition of foreign intelligence information pursuant to the amendments

made by this Act, and directives issued pursuant to such authorizations, shall remain in effect until their expiration. Such acquisitions

shall be governed by the applicable provisions of such amendments

and shall not be deemed 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)).

Approved August 5, 2007.