I 

110TH CONGRESS 

2D SESSION H. R. 5440 

To amend the Foreign Intelligence Surveillance Act of 1978 to establish 

a procedure for authorizing certain acquisitions of foreign intelligence, 

and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

FEBRUARY 14, 2008 

Mr. FOSSELLA (for himself, Mr. KING of New York, Mr. HOEKSTRA, and Mr. 

SMITH of Texas) introduced the following bill; which was referred to the 

Committee on the Judiciary, and in addition to the Select Committee on 

Intelligence (Permanent Select), for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions 

as fall within the jurisdiction of the committee concerned 

A BILL 

To amend the Foreign Intelligence Surveillance Act of 1978 

to establish a procedure for authorizing certain acquisitions of foreign intelligence, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Foreign Intelligence Surveillance Act of 1978 Amend6 ments Act of 2008’’ or the ‘‘FISA Amendments Act of 

7 2008’’. 


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1 (b) TABLE OF CONTENTS.—The table of contents for 

2 this Act is as follows: 

Sec. 1. Short title; table of contents. 

TITLE I—FOREIGN INTELLIGENCE SURVEILLANCE 

Sec. 101. Additional procedures regarding certain persons outside the United 

States. 

Sec. 102. Statement of exclusive means by which electronic surveillance and 

interception of 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. Weapons of mass destruction. 

Sec. 111. 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. 

3 TITLE I—FOREIGN 

4 INTELLIGENCE SURVEILLANCE 

5 SEC. 101. ADDITIONAL PROCEDURES REGARDING CERTAIN 

6 PERSONS OUTSIDE THE UNITED STATES. 

7 (a) IN GENERAL.—The Foreign Intelligence Surveil8 lance Act of 1978 (50 U.S.C. 1801 et seq.) is amended— 

9 (1) by striking title VII; and 


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1 (2) by adding after title VI the following new 

2 title: 

3 ‘‘TITLE VII—ADDITIONAL PROCE4 DURES REGARDING CERTAIN 

5 PERSONS OUTSIDE THE 

6 UNITED STATES 

7 ‘‘SEC. 701. LIMITATION ON DEFINITION OF ELECTRONIC 

8 SURVEILLANCE. 

9 ‘‘Nothing in the definition of electronic surveillance 

10 under section 101(f) shall be construed to encompass sur11 veillance that is targeted in accordance with this title at 

12 a person reasonably believed to be located outside the 

13 United States. 

14 ‘‘SEC. 702. DEFINITIONS. 

15 ‘‘(a) IN GENERAL.—The terms ‘agent of a foreign 

16 power’, ‘Attorney General’, ‘contents’, ‘electronic surveil17 lance’, ‘foreign intelligence information’, ‘foreign power’, 

18 ‘minimization procedures’, ‘person’, ‘United States’, and 

19 ‘United States person’ shall have the meanings given such 

20 terms in section 101, except as specifically provided in this 

21 title. 

22 ‘‘(b) ADDITIONAL DEFINITIONS.— 

23 ‘‘(1) CONGRESSIONAL INTELLIGENCE COMMIT24 TEES.—The term ‘congressional intelligence commit25 tees’ means— 


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1 ‘‘(A) the Select Committee on Intelligence 

2 of the Senate; and 

3 ‘‘(B) the Permanent Select Committee on 

4 Intelligence of the House of Representatives. 

5 ‘‘(2) FOREIGN INTELLIGENCE SURVEILLANCE

6 COURT; COURT.—The terms ‘Foreign Intelligence 

7 Surveillance Court’ and ‘Court’ mean the court es8 tablished by section 103(a). 

9 ‘‘(3) FOREIGN INTELLIGENCE SURVEILLANCE

10 COURT OF REVIEW; COURT OF REVIEW.—The terms 

11 ‘Foreign Intelligence Surveillance Court of Review’ 

12 and ‘Court of Review’ mean the court established by 

13 section 103(b). 

14 ‘‘(4) ELECTRONIC COMMUNICATION SERVICE

15 PROVIDER.—The term ‘electronic communication 

16 service provider’ means— 

17 ‘‘(A) a telecommunications carrier, as that 

18 term is defined in section 3 of the Communica19 tions Act of 1934 (47 U.S.C. 153); 

20 ‘‘(B) a provider of electronic communica21 tion service, as that term is defined in section 

22 2510 of title 18, United States Code; 

23 ‘‘(C) a provider of a remote computing 

24 service, as that term is defined in section 2711 

25 of title 18, United States Code; 


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1 ‘‘(D) any other communication service pro2 vider who has access to wire or electronic com3 munications either as such communications are 

4 transmitted or as such communications are 

5 stored; or 

6 ‘‘(E) an officer, employee, or agent of an 

7 entity described in subparagraph (A), (B), (C), 

8 or (D). 

9 ‘‘(5) ELEMENT OF THE INTELLIGENCE COMMU10 NITY.—The term ‘element of the intelligence com11 munity’ means an element of the intelligence com12 munity specified in or designated under section 3(4) 

13 of the National Security Act of 1947 (50 U.S.C. 

14 401a(4)). 

15 ‘‘SEC. 703. PROCEDURES FOR TARGETING CERTAIN PER16 SONS OUTSIDE THE UNITED STATES OTHER 

17 THAN UNITED STATES PERSONS. 

18 ‘‘(a) AUTHORIZATION.—Notwithstanding any other 

19 law, the Attorney General and the Director of National 

20 Intelligence may authorize jointly, for periods of up to 1 

21 year, the targeting of persons reasonably believed to be 

22 located outside the United States to acquire foreign intel23 ligence information. 

24 ‘‘(b) LIMITATIONS.—An acquisition authorized under 

25 subsection (a)— 


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1 ‘‘(1) may not intentionally target any person 

2 known at the time of acquisition to be located in the 

3 United States; 

4 ‘‘(2) may not intentionally target a person rea5 sonably believed to be located outside the United 

6 States if the purpose of such acquisition is to target 

7 a particular, known person reasonably believed to be 

8 in the United States, except in accordance with title 

9 I or title III; 

10 ‘‘(3) may not intentionally target a United 

11 States person reasonably believed to be located out12 side the United States, except in accordance with 

13 sections 704, 705, or 706; 

14 ‘‘(4) shall not intentionally acquire any commu15 nication as to which the sender and all intended re16 cipients are known at the time of the acquisition to 

17 be located in the United States; and 

18 ‘‘(5) shall be conducted in a manner consistent 

19 with the fourth amendment to the Constitution of 

20 the United States. 

21 ‘‘(c) CONDUCT OF ACQUISITION.—An acquisition au22 thorized under subsection (a) may be conducted only in 

23 accordance with— 


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1 ‘‘(1) a certification made by the Attorney Gen2 eral and the Director of National Intelligence pursu3 ant to subsection (f); and 

4 ‘‘(2) the targeting and minimization procedures 

5 required pursuant to subsections (d) and (e). 

6 ‘‘(d) TARGETING PROCEDURES.— 

7 ‘‘(1) REQUIREMENT TO ADOPT.—The Attorney 

8 General, in consultation with the Director of Na9 tional Intelligence, shall adopt targeting procedures 

10 that are reasonably designed to ensure that any ac11 quisition authorized under subsection (a) is limited 

12 to targeting persons reasonably believed to be lo13 cated outside the United States and does not result 

14 in the intentional acquisition of any communication 

15 as to which the sender and all intended recipients 

16 are known at the time of the acquisition to be lo17 cated in the United States. 

18 ‘‘(2) JUDICIAL REVIEW.—The procedures re19 ferred to in paragraph (1) shall be subject to judicial 

20 review pursuant to subsection (h). 

21 ‘‘(e) MINIMIZATION PROCEDURES.— 

22 ‘‘(1) REQUIREMENT TO ADOPT.—The Attorney 

23 General, in consultation with the Director of Na24 tional Intelligence, shall adopt minimization proce25 dures that meet the definition of minimization proceVerDate Aug 31 2005 03:48 Feb 16, 2008 Jkt 069200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H5440.IH H5440

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1 dures under section 101(h) or section 301(4) for ac2 quisitions authorized under subsection (a). 

3 ‘‘(2) JUDICIAL REVIEW.—The minimization 

4 procedures required by this subsection shall be sub5 ject to judicial review pursuant to subsection (h). 

6 ‘‘(f) CERTIFICATION.— 

7 ‘‘(1) IN GENERAL.— 

8 ‘‘(A) REQUIREMENT.—Subject to subpara9 graph (B), prior to the initiation of an acquisi10 tion authorized under subsection (a), the Attor11 ney General and the Director of National Intel12 ligence shall provide, under oath, a written cer13 tification, as described in this subsection. 

14 ‘‘(B) EXCEPTION.—If the Attorney Gen15 eral and the Director of National Intelligence 

16 determine that immediate action by the Govern17 ment is required and time does not permit the 

18 preparation of a certification under this sub19 section prior to the initiation of an acquisition, 

20 the Attorney General and the Director of Na21 tional Intelligence shall prepare such certifi22 cation, including such determination, as soon as 

23 possible but in no event more than 7 days after 

24 such determination is made. 


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1 ‘‘(2) REQUIREMENTS.—A certification made 

2 under this subsection shall— 

3 ‘‘(A) attest that— 

4 ‘‘(i) there are reasonable procedures 

5 in place for determining that the acquisi6 tion authorized under subsection (a) is tar7 geted at persons reasonably believed to be 

8 located outside the United States and that 

9 such procedures have been approved by, or 

10 will be submitted in not more than 5 days 

11 for approval by, the Foreign Intelligence 

12 Surveillance Court pursuant to subsection 

13 (h); 

14 ‘‘(ii) there are reasonable procedures 

15 in place for determining that the acquisi16 tion authorized under subsection (a) does 

17 not result in the intentional acquisition of 

18 any communication as to which the sender 

19 and all intended recipients are known at 

20 the time of the acquisition to be located in 

21 the United States, and that such proce22 dures have been approved by, or will be 

23 submitted in not more than 5 days for ap24 proval by, the Foreign Intelligence Surveil25 lance Court pursuant to subsection (h); 


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1 ‘‘(iii) the procedures referred to in 

2 clauses (i) and (ii) are consistent with the 

3 requirements of the fourth amendment to 

4 the Constitution of the United States and 

5 do not permit the intentional targeting of 

6 any person who is known at the time of ac7 quisition to be located in the United States 

8 or the intentional acquisition of any com9 munication as to which the sender and all 

10 intended recipients are known at the time 

11 of acquisition to be located in the United 

12 States; 

13 ‘‘(iv) a significant purpose of the ac14 quisition is to obtain foreign intelligence 

15 information; 

16 ‘‘(v) the minimization procedures to 

17 be used with respect to such acquisition— 

18 ‘‘(I) meet the definition of mini19 mization procedures under section 

20 101(h) or section 301(4); and 

21 ‘‘(II) have been approved by, or 

22 will be submitted in not more than 5 

23 days for approval by, the Foreign In24 telligence Surveillance Court pursuant 

25 to subsection (h); 


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1 ‘‘(vi) the acquisition involves obtaining 

2 the foreign intelligence information from or 

3 with the assistance of an electronic com4 munication service provider; and 

5 ‘‘(vii) the acquisition does not con6 stitute electronic surveillance, as limited by 

7 section 701; and 

8 ‘‘(B) be supported, as appropriate, by the 

9 affidavit of any appropriate official in the area 

10 of national security who is— 

11 ‘‘(i) appointed by the President, by 

12 and with the consent of the Senate; or 

13 ‘‘(ii) the head of any element of the 

14 intelligence community. 

15 ‘‘(3) LIMITATION.—A certification made under 

16 this subsection is not required to identify the specific 

17 facilities, places, premises, or property at which the 

18 acquisition authorized under subsection (a) will be 

19 directed or conducted. 

20 ‘‘(4) SUBMISSION TO THE COURT.—The Attor21 ney General shall transmit a copy of a certification 

22 made under this subsection, and any supporting affi23 davit, under seal to the Foreign Intelligence Surveil24 lance Court as soon as possible, but in no event 

25 more than 5 days after such certification is made. 


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1 Such certification shall be maintained under security 

2 measures adopted by the Chief Justice of the United 

3 States and the Attorney General, in consultation 

4 with the Director of National Intelligence. 

5 ‘‘(5) REVIEW.—The certification required by 

6 this subsection shall be subject to judicial review 

7 pursuant to subsection (h). 

8 ‘‘(g) DIRECTIVES AND JUDICIAL REVIEW OF DIREC9 TIVES.— 

10 ‘‘(1) AUTHORITY.—With respect to an acquisi11 tion authorized under subsection (a), the Attorney 

12 General and the Director of National Intelligence 

13 may direct, in writing, an electronic communication 

14 service provider to— 

15 ‘‘(A) immediately provide the Government 

16 with all information, facilities, or assistance 

17 necessary to accomplish the acquisition in a 

18 manner that will protect the secrecy of the ac19 quisition and produce a minimum of inter20 ference with the services that such electronic 

21 communication service provider is providing to 

22 the target; and 

23 ‘‘(B) maintain under security procedures 

24 approved by the Attorney General and the Di25 rector of National Intelligence any records conVerDate Aug 31 2005 03:48 Feb 16, 2008 Jkt 069200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H5440.IH H5440

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1 cerning the acquisition or the aid furnished that 

2 such electronic communication service provider 

3 wishes to maintain. 

4 ‘‘(2) COMPENSATION.—The Government shall 

5 compensate, at the prevailing rate, an electronic 

6 communication service provider for providing infor7 mation, facilities, or assistance pursuant to para8 graph (1). 

9 ‘‘(3) RELEASE FROM LIABILITY.—Notwith10 standing any other law, no cause of action shall lie 

11 in any court against any electronic communication 

12 service provider for providing any information, facili13 ties, or assistance in accordance with a directive 

14 issued pursuant to paragraph (1). 

15 ‘‘(4) CHALLENGING OF DIRECTIVES.— 

16 ‘‘(A) AUTHORITY TO CHALLENGE.—An 

17 electronic communication service provider re18 ceiving a directive issued pursuant to paragraph 

19 (1) may challenge the directive by filing a peti20 tion with the Foreign Intelligence Surveillance 

21 Court, which shall have jurisdiction to review 

22 such a petition. 

23 ‘‘(B) ASSIGNMENT.—The presiding judge 

24 of the Court shall assign the petition filed 

25 under subparagraph (A) to 1 of the judges servVerDate Aug 31 2005 03:48 Feb 16, 2008 Jkt 069200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\H5440.IH H5440

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1 ing in the pool established by section 103(e)(1) 

2 not later than 24 hours after the filing of the 

3 petition. 

4 ‘‘(C) STANDARDS FOR REVIEW.—A judge 

5 considering a petition to modify or set aside a 

6 directive may grant such petition only if the 

7 judge finds that the directive does not meet the 

8 requirements of this section, or is otherwise un9 lawful. 

10 ‘‘(D) PROCEDURES FOR INITIAL RE11 VIEW.—A judge shall conduct an initial review 

12 not later than 5 days after being assigned a pe13 tition described in subparagraph (C). If the 

14 judge determines that the petition consists of 

15 claims, defenses, or other legal contentions that 

16 are not warranted by existing law or by a non17 frivolous argument for extending, modifying, or 

18 reversing existing law or for establishing new 

19 law, the judge shall immediately deny the peti20 tion and affirm the directive or any part of the 

21 directive that is the subject of the petition and 

22 order the recipient to comply with the directive 

23 or any part of it. Upon making such a deter24 mination or promptly thereafter, the judge shall 

25 provide a written statement for the record of 


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1 the reasons for a determination under this sub2 paragraph. 

3 ‘‘(E) PROCEDURES FOR PLENARY RE4 VIEW.—If a judge determines that a petition 

5 described in subparagraph (C) requires plenary 

6 review, the judge shall affirm, modify, or set 

7 aside the directive that is the subject of that pe8 tition not later than 30 days after being as9 signed the petition, unless the judge, by order 

10 for reasons stated, extends that time as nec11 essary to comport with the due process clause 

12 of the fifth amendment to the Constitution of 

13 the United States. Unless the judge sets aside 

14 the directive, the judge shall immediately affirm 

15 or affirm with modifications the directive, and 

16 order the recipient to comply with the directive 

17 in its entirety or as modified. The judge shall 

18 provide a written statement for the records of 

19 the reasons for a determination under this sub20 paragraph. 

21 ‘‘(F) CONTINUED EFFECT.—Any directive 

22 not explicitly modified or set aside under this 

23 paragraph shall remain in full effect. 

24 ‘‘(G) CONTEMPT OF COURT.—Failure to 

25 obey an order of the Court issued under this 


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1 paragraph may be punished by the Court as 

2 contempt of court. 

3 ‘‘(5) ENFORCEMENT OF DIRECTIVES.— 

4 ‘‘(A) ORDER TO COMPEL.—In the case of 

5 a failure to comply with a directive issued pur6 suant to paragraph (1), the Attorney General 

7 may file a petition for an order to compel com8 pliance with the directive with the Foreign In9 telligence Surveillance Court, which shall have 

10 jurisdiction to review such a petition. 

11 ‘‘(B) ASSIGNMENT.—The presiding judge 

12 of the Court shall assign a petition filed under 

13 subparagraph (A) to 1 of the judges serving in 

14 the pool established by section 103(e)(1) not 

15 later than 24 hours after the filing of the peti16 tion. 

17 ‘‘(C) STANDARDS FOR REVIEW.—A judge 

18 considering a petition filed under subparagraph 

19 (A) shall issue an order requiring the electronic 

20 communication service provider to comply with 

21 the directive or any part of it, as issued or as 

22 modified, if the judge finds that the directive 

23 meets the requirements of this section, and is 

24 otherwise lawful. 


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1 ‘‘(D) PROCEDURES FOR REVIEW.—The 

2 judge shall render a determination not later 

3 than 30 days after being assigned a petition 

4 filed under subparagraph (A), unless the judge, 

5 by order for reasons stated, extends that time 

6 if necessary to comport with the due process 

7 clause of the fifth amendment to the Constitu8 tion of the United States. The judge shall pro9 vide a written statement for the record of the 

10 reasons for a determination under this para11 graph. 

12 ‘‘(E) CONTEMPT OF COURT.—Failure to 

13 obey an order of the Court issued under this 

14 paragraph may be punished by the Court as 

15 contempt of court. 

16 ‘‘(F) PROCESS.—Any process under this 

17 paragraph may be served in any judicial district 

18 in which the electronic communication service 

19 provider may be found. 

20 ‘‘(6) APPEAL.— 

21 ‘‘(A) APPEAL TO THE COURT OF RE22 VIEW.—The Government or an electronic com23 munication service provider receiving a directive 

24 issued pursuant to paragraph (1) may file a pe25 tition with the Foreign Intelligence Surveillance 


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1 Court of Review for review of the decision 

2 issued pursuant to paragraph (4) or (5). The 

3 Court of Review shall have jurisdiction to con4 sider such a petition and shall provide a written 

5 statement for the record of the reasons for a 

6 decision under this paragraph. 

7 ‘‘(B) CERTIORARI TO THE SUPREME

8 COURT.—The Government or an electronic com9 munication service provider receiving a directive 

10 issued pursuant to paragraph (1) may file a pe11 tition for a writ of certiorari for review of the 

12 decision of the Court of Review issued under 

13 subparagraph (A). The record for such review 

14 shall be transmitted under seal to the Supreme 

15 Court of the United States, which shall have ju16 risdiction to review such decision. 

17 ‘‘(h) JUDICIAL REVIEW OF CERTIFICATIONS AND

18 PROCEDURES.— 

19 ‘‘(1) IN GENERAL.— 

20 ‘‘(A) REVIEW BY THE FOREIGN INTEL21 LIGENCE SURVEILLANCE COURT.—The Foreign 

22 Intelligence Surveillance Court shall have juris23 diction to review any certification required by 

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1 tion procedures adopted pursuant to subsections 

2 (d) and (e). 

3 ‘‘(B) SUBMISSION TO THE COURT.—The 

4 Attorney General shall submit to the Court any 

5 such certification or procedure, or amendment 

6 thereto, not later than 5 days after making or 

7 amending the certification or adopting or 

8 amending the procedures. 

9 ‘‘(2) CERTIFICATIONS.—The Court shall review 

10 a certification provided under subsection (f) to deter11 mine whether the certification contains all the re12 quired elements. 

13 ‘‘(3) TARGETING PROCEDURES.—The Court 

14 shall review the targeting procedures required by 

15 subsection (d) to assess whether the procedures are 

16 reasonably designed to ensure that the acquisition 

17 authorized under subsection (a) is limited to the tar18 geting of persons reasonably believed to be located 

19 outside the United States and does not result in the 

20 intentional acquisition of any communication as to 

21 which the sender and all intended recipients are 

22 known at the time of the acquisition to be located 

23 in the United States. 

24 ‘‘(4) MINIMIZATION PROCEDURES.—The Court 

25 shall review the minimization procedures required by 


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1 subsection (e) to assess whether such procedures 

2 meet the definition of minimization procedures 

3 under section 101(h) or section 301(4). 

4 ‘‘(5) ORDERS.— 

5 ‘‘(A) APPROVAL.—If the Court finds that 

6 a certification required by subsection (f) con7 tains all of the required elements and that the 

8 targeting and minimization procedures required 

9 by subsections (d) and (e) are consistent with 

10 the requirements of those subsections and with 

11 the fourth amendment to the Constitution of 

12 the United States, the Court shall enter an 

13 order approving the continued use of the proce14 dures for the acquisition authorized under sub15 section (a). 

16 ‘‘(B) CORRECTION OF DEFICIENCIES.—If 

17 the Court finds that a certification required by 

18 subsection (f) does not contain all of the re19 quired elements, or that the procedures re20 quired by subsections (d) and (e) are not con21 sistent with the requirements of those sub22 sections or the fourth amendment to the Con23 stitution of the United States, the Court shall 

24 issue an order directing the Government to, at 


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1 the Government’s election and to the extent re2 quired by the Court’s order— 

3 ‘‘(i) correct any deficiency identified 

4 by the Court’s order not later than 30 days 

5 after the date the Court issues the order; 

6 or 

7 ‘‘(ii) cease the acquisition authorized 

8 under subsection (a). 

9 ‘‘(C) REQUIREMENT FOR WRITTEN STATE10 MENT.—In support of its orders under this sub11 section, the Court shall provide, simultaneously 

12 with the orders, for the record a written state13 ment of its reasons. 

14 ‘‘(6) APPEAL.— 

15 ‘‘(A) APPEAL TO THE COURT OF RE16 VIEW.—The Government may appeal any order 

17 under this section to the Foreign Intelligence 

18 Surveillance Court of Review, which shall have 

19 jurisdiction to review such order. For any deci20 sion affirming, reversing, or modifying an order 

21 of the Foreign Intelligence Surveillance Court, 

22 the Court of Review shall provide for the record 

23 a written statement of its reasons. 

24 ‘‘(B) CONTINUATION OF ACQUISITION

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1 sitions affected by an order under paragraph 

2 (5)(B) may continue— 

3 ‘‘(i) during the pendency of any re4 hearing of the order by the Court en banc; 

5 and 

6 ‘‘(ii) if the Government appeals an 

7 order under this section, until the Court of 

8 Review enters an order under subpara9 graph (C). 

10 ‘‘(C) IMPLEMENTATION PENDING AP11 PEAL.—Not later than 60 days after the filing 

12 of an appeal of an order under paragraph 

13 (5)(B) directing the correction of a deficiency, 

14 the Court of Review shall determine, and enter 

15 a corresponding order regarding, whether all or 

16 any part of the correction order, as issued or 

17 modified, shall be implemented during the pend18 ency of the appeal. 

19 ‘‘(D) CERTIORARI TO THE SUPREME

20 COURT.—The Government may file a petition 

21 for a writ of certiorari for review of a decision 

22 of the Court of Review issued under subpara23 graph (A). The record for such review shall be 

24 transmitted under seal to the Supreme Court of 


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1 the United States, which shall have jurisdiction 

2 to review such decision. 

3 ‘‘(i) EXPEDITED JUDICIAL PROCEEDINGS.—Judicial 

4 proceedings under this section shall be conducted as expe5 ditiously as possible. 

6 ‘‘(j) MAINTENANCE AND SECURITY OF RECORDS AND

7 PROCEEDINGS.— 

8 ‘‘(1) STANDARDS.—A record of a proceeding 

9 under this section, including petitions filed, orders 

10 granted, and statements of reasons for decision, 

11 shall be maintained under security measures adopted 

12 by the Chief Justice of the United States, in con13 sultation with the Attorney General and the Director 

14 of National Intelligence. 

15 ‘‘(2) FILING AND REVIEW.—All petitions under 

16 this section shall be filed under seal. In any pro17 ceedings under this section, the court shall, upon re18 quest of the Government, review ex parte and in 

19 camera any Government submission, or portions of 

20 a submission, which may include classified informa21 tion. 

22 ‘‘(3) RETENTION OF RECORDS.—A directive 

23 made or an order granted under this section shall be 

24 retained for a period of not less than 10 years from 


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1 the date on which such directive or such order is 

2 made. 

3 ‘‘(k) ASSESSMENTS AND REVIEWS.— 

4 ‘‘(1) SEMIANNUAL ASSESSMENT.—Not less fre5 quently than once every 6 months, the Attorney 

6 General and Director of National Intelligence shall 

7 assess compliance with the targeting and minimiza8 tion procedures required by subsections (e) and (f) 

9 and shall submit each such assessment to— 

10 ‘‘(A) the Foreign Intelligence Surveillance 

11 Court; and 

12 ‘‘(B) the congressional intelligence commit13 tees. 

14 ‘‘(2) AGENCY ASSESSMENT.—The Inspectors 

15 General of the Department of Justice and of any 

16 element of the intelligence community authorized to 

17 acquire foreign intelligence information under sub18 section (a) with respect to their department, agency, 

19 or element— 

20 ‘‘(A) are authorized to review the compli21 ance with the targeting and minimization proce22 dures required by subsections (d) and (e); 

23 ‘‘(B) with respect to acquisitions author24 ized under subsection (a), shall review the num25 ber of disseminated intelligence reports conVerDate Aug 31 2005 03:48 Feb 16, 2008 Jkt 069200 PO 00000 Frm 00024 Fmt 6652 Sfmt 6201 E:\BILLS\H5440.IH H5440

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1 taining a reference to a United States person 

2 identity and the number of United States per3 son identities subsequently disseminated by the 

4 element concerned in response to requests for 

5 identities that were not referred to by name or 

6 title in the original reporting; 

7 ‘‘(C) with respect to acquisitions author8 ized under subsection (a), shall review the num9 ber of targets that were later determined to be 

10 located in the United States and, to the extent 

11 possible, whether their communications were re12 viewed; and 

13 ‘‘(D) shall provide each such review to— 

14 ‘‘(i) the Attorney General; 

15 ‘‘(ii) the Director of National Intel16 ligence; and 

17 ‘‘(iii) the congressional intelligence 

18 committees. 

19 ‘‘(3) ANNUAL REVIEW.— 

20 ‘‘(A) REQUIREMENT TO CONDUCT.—The 

21 head of an element of the intelligence commu22 nity conducting an acquisition authorized under 

23 subsection (a) shall direct the element to con24 duct an annual review to determine whether 

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1 ligence information has been or will be obtained 

2 from the acquisition. The annual review shall 

3 provide, with respect to such acquisitions au4 thorized under subsection (a)— 

5 ‘‘(i) an accounting of the number of 

6 disseminated intelligence reports con7 taining a reference to a United States per8 son identity; 

9 ‘‘(ii) an accounting of the number of 

10 United States person identities subse11 quently disseminated by that element in re12 sponse to requests for identities that were 

13 not referred to by name or title in the 

14 original reporting; 

15 ‘‘(iii) the number of targets that were 

16 later determined to be located in the 

17 United States and, to the extent possible, 

18 whether their communications were re19 viewed; and 

20 ‘‘(iv) a description of any procedures 

21 developed by the head of an element of the 

22 intelligence community and approved by 

23 the Director of National Intelligence to as24 sess, in a manner consistent with national 

25 security, operational requirements and the 


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1 privacy interests of United States persons, 

2 the extent to which the acquisitions au3 thorized under subsection (a) acquire the 

4 communications of United States persons, 

5 as well as the results of any such assess6 ment. 

7 ‘‘(B) USE OF REVIEW.—The head of each 

8 element of the intelligence community that con9 ducts an annual review under subparagraph (A) 

10 shall use each such review to evaluate the ade11 quacy of the minimization procedures utilized 

12 by such element or the application of the mini13 mization procedures to a particular acquisition 

14 authorized under subsection (a). 

15 ‘‘(C) PROVISION OF REVIEW.—The head of 

16 each element of the intelligence community that 

17 conducts an annual review under subparagraph 

18 (A) shall provide such review to— 

19 ‘‘(i) the Foreign Intelligence Surveil20 lance Court; 

21 ‘‘(ii) the Attorney General; 

22 ‘‘(iii) the Director of National Intel23 ligence; and 

24 ‘‘(iv) the congressional intelligence 

25 committees. 


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1 ‘‘SEC. 704. CERTAIN ACQUISITIONS INSIDE THE UNITED 

2 STATES OF UNITED STATES PERSONS OUT3 SIDE THE UNITED STATES. 

4 ‘‘(a) JURISDICTION OF THE FOREIGN INTELLIGENCE

5 SURVEILLANCE COURT.— 

6 ‘‘(1) IN GENERAL.—The Foreign Intelligence 

7 Surveillance Court shall have jurisdiction to enter an 

8 order approving the targeting of a United States 

9 person reasonably believed to be located outside the 

10 United States to acquire foreign intelligence infor11 mation, if such acquisition constitutes electronic sur12 veillance (as defined in section 101(f), regardless of 

13 the limitation of section 701) or the acquisition of 

14 stored electronic communications or stored electronic 

15 data that requires an order under this Act, and such 

16 acquisition is conducted within the United States. 

17 ‘‘(2) LIMITATION.—In the event that a United 

18 States person targeted under this subsection is rea19 sonably believed to be located in the United States 

20 during the pendency of an order issued pursuant to 

21 subsection (c), such acquisition shall cease until au22 thority, other than under this section, is obtained 

23 pursuant to this Act or the targeted United States 

24 person is again reasonably believed to be located out25 side the United States during the pendency of an 

26 order issued pursuant to subsection (c). 


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1 ‘‘(b) APPLICATION.— 

2 ‘‘(1) IN GENERAL.—Each application for an 

3 order under this section shall be made by a Federal 

4 officer in writing upon oath or affirmation to a 

5 judge having jurisdiction under subsection (a)(1). 

6 Each application shall require the approval of the 

7 Attorney General based upon the Attorney General’s 

8 finding that it satisfies the criteria and requirements 

9 of such application, as set forth in this section, and 

10 shall include— 

11 ‘‘(A) the identity of the Federal officer 

12 making the application; 

13 ‘‘(B) the identity, if known, or a descrip14 tion of the United States person who is the tar15 get of the acquisition; 

16 ‘‘(C) a statement of the facts and cir17 cumstances relied upon to justify the appli18 cant’s belief that the United States person who 

19 is the target of the acquisition is— 

20 ‘‘(i) a person reasonably believed to be 

21 located outside the United States; and 

22 ‘‘(ii) a foreign power, an agent of a 

23 foreign power, or an officer or employee of 

24 a foreign power; 


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•HR 5440 IH

1 ‘‘(D) a statement of the proposed mini2 mization procedures that meet the definition of 

3 minimization procedures under section 101(h) 

4 or section 301(4); 

5 ‘‘(E) a description of the nature of the in6 formation sought and the type of communica7 tions or activities to be subjected to acquisition; 

8 ‘‘(F) a certification made by the Attorney 

9 General or an official specified in section 

10 104(a)(6) that— 

11 ‘‘(i) the certifying official deems the 

12 information sought to be foreign intel13 ligence information; 

14 ‘‘(ii) a significant purpose of the ac15 quisition is to obtain foreign intelligence 

16 information; 

17 ‘‘(iii) such information cannot reason18 ably be obtained by normal investigative 

19 techniques; 

20 ‘‘(iv) designates the type of foreign in21 telligence information being sought accord22 ing to the categories described in section 

23 101(e); and 

24 ‘‘(v) includes a statement of the basis 

25 for the certification that— 


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1 ‘‘(I) the information sought is 

2 the type of foreign intelligence infor3 mation designated; and 

4 ‘‘(II) such information cannot 

5 reasonably be obtained by normal in6 vestigative techniques; 

7 ‘‘(G) a summary statement of the means 

8 by which the acquisition will be conducted and 

9 whether physical entry is required to effect the 

10 acquisition; 

11 ‘‘(H) the identity of any electronic commu12 nication service provider necessary to effect the 

13 acquisition, provided, however, that the applica14 tion is not required to identify the specific fa15 cilities, places, premises, or property at which 

16 the acquisition authorized under this section 

17 will be directed or conducted; 

18 ‘‘(I) a statement of the facts concerning 

19 any previous applications that have been made 

20 to any judge of the Foreign Intelligence Surveil21 lance Court involving the United States person 

22 specified in the application and the action taken 

23 on each previous application; and 

24 ‘‘(J) a statement of the period of time for 

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1 tained, provided that such period of time shall 

2 not exceed 90 days per application. 

3 ‘‘(2) OTHER REQUIREMENTS OF THE ATTOR4 NEY GENERAL.—The Attorney General may require 

5 any other affidavit or certification from any other 

6 officer in connection with the application. 

7 ‘‘(3) OTHER REQUIREMENTS OF THE JUDGE.— 

8 The judge may require the applicant to furnish such 

9 other information as may be necessary to make the 

10 findings required by subsection (c)(1). 

11 ‘‘(c) ORDER.— 

12 ‘‘(1) FINDINGS.—Upon an application made 

13 pursuant to subsection (b), the Foreign Intelligence 

14 Surveillance Court shall enter an ex parte order as 

15 requested or as modified approving the acquisition if 

16 the Court finds that— 

17 ‘‘(A) the application has been made by a 

18 Federal officer and approved by the Attorney 

19 General; 

20 ‘‘(B) on the basis of the facts submitted by 

21 the applicant, for the United States person who 

22 is the target of the acquisition, there is prob23 able cause to believe that the target is— 

24 ‘‘(i) a person reasonably believed to be 

25 located outside the United States; and 


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1 ‘‘(ii) a foreign power, an agent of a 

2 foreign power, or an officer or employee of 

3 a foreign power; 

4 ‘‘(C) the proposed minimization procedures 

5 meet the definition of minimization procedures 

6 under section 101(h) or section 301(4); and 

7 ‘‘(D) the application which has been filed 

8 contains all statements and certifications re9 quired by subsection (b) and the certification or 

10 certifications are not clearly erroneous on the 

11 basis of the statement made under subsection 

12 (b)(1)(F)(v) and any other information fur13 nished under subsection (b)(3). 

14 ‘‘(2) PROBABLE CAUSE.—In determining 

15 whether or not probable cause exists for purposes of 

16 an order under paragraph (1), a judge having juris17 diction under subsection (a)(1) may consider past 

18 activities of the target, as well as facts and cir19 cumstances relating to current or future activities of 

20 the target. However, no United States person may 

21 be considered a foreign power, agent of a foreign 

22 power, or officer or employee of a foreign power 

23 solely upon the basis of activities protected by the 

24 first amendment to the Constitution of the United 

25 States. 


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1 ‘‘(3) REVIEW.— 

2 ‘‘(A) LIMITATION ON REVIEW.—Review by 

3 a judge having jurisdiction under subsection 

4 (a)(1) shall be limited to that required to make 

5 the findings described in paragraph (1). 

6 ‘‘(B) REVIEW OF PROBABLE CAUSE.—If 

7 the judge determines that the facts submitted 

8 under subsection (b) are insufficient to estab9 lish probable cause to issue an order under 

10 paragraph (1), the judge shall enter an order so 

11 stating and provide a written statement for the 

12 record of the reasons for such determination. 

13 The Government may appeal an order under 

14 this clause pursuant to subsection (f). 

15 ‘‘(C) REVIEW OF MINIMIZATION PROCE16 DURES.—If the judge determines that the pro17 posed minimization procedures required under 

18 paragraph (1)(C) do not meet the definition of 

19 minimization procedures under section 101(h) 

20 or section 301(4), the judge shall enter an 

21 order so stating and provide a written state22 ment for the record of the reasons for such de23 termination. The Government may appeal an 

24 order under this clause pursuant to subsection 

25 (f). 


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•HR 5440 IH

1 ‘‘(D) REVIEW OF CERTIFICATION.—If the 

2 judge determines that an application required 

3 by subsection (b) does not contain all of the re4 quired elements, or that the certification or cer5 tifications are clearly erroneous on the basis of 

6 the statement made under subsection 

7 (b)(1)(F)(v) and any other information fur8 nished under subsection (b)(3), the judge shall 

9 enter an order so stating and provide a written 

10 statement for the record of the reasons for such 

11 determination. The Government may appeal an 

12 order under this clause pursuant to subsection 

13 (f). 

14 ‘‘(4) SPECIFICATIONS.—An order approving an 

15 acquisition under this subsection shall specify— 

16 ‘‘(A) the identity, if known, or a descrip17 tion of the United States person who is the tar18 get of the acquisition identified or described in 

19 the application pursuant to subsection 

20 (b)(1)(B); 

21 ‘‘(B) if provided in the application pursu22 ant to subsection (b)(1)(H), the nature and lo23 cation of each of the facilities or places at 

24 which the acquisition will be directed; 


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•HR 5440 IH

1 ‘‘(C) the nature of the information sought 

2 to be acquired and the type of communications 

3 or activities to be subjected to acquisition; 

4 ‘‘(D) the means by which the acquisition 

5 will be conducted and whether physical entry is 

6 required to effect the acquisition; and 

7 ‘‘(E) the period of time during which the 

8 acquisition is approved. 

9 ‘‘(5) DIRECTIONS.—An order approving acquisi10 tions under this subsection shall direct— 

11 ‘‘(A) that the minimization procedures be 

12 followed; 

13 ‘‘(B) an electronic communication service 

14 provider to provide to the Government forthwith 

15 all information, facilities, or assistance nec16 essary to accomplish the acquisition authorized 

17 under this subsection in a manner that will pro18 tect the secrecy of the acquisition and produce 

19 a minimum of interference with the services 

20 that such electronic communication service pro21 vider is providing to the target; 

22 ‘‘(C) an electronic communication service 

23 provider to maintain under security procedures 

24 approved by the Attorney General any records 

25 concerning the acquisition or the aid furnished 


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•HR 5440 IH

1 that such electronic communication service pro2 vider wishes to maintain; and 

3 ‘‘(D) that the Government compensate, at 

4 the prevailing rate, such electronic communica5 tion service provider for providing such infor6 mation, facilities, or assistance. 

7 ‘‘(6) DURATION.—An order approved under this 

8 paragraph shall be effective for a period not to ex9 ceed 90 days and such order may be renewed for ad10 ditional 90-day periods upon submission of renewal 

11 applications meeting the requirements of subsection 

12 (b). 

13 ‘‘(7) COMPLIANCE.—At or prior to the end of 

14 the period of time for which an acquisition is ap15 proved by an order or extension under this section, 

16 the judge may assess compliance with the minimiza17 tion procedures by reviewing the circumstances 

18 under which information concerning United States 

19 persons was acquired, retained, or disseminated. 

20 ‘‘(d) EMERGENCY AUTHORIZATION.— 

21 ‘‘(1) AUTHORITY FOR EMERGENCY AUTHORIZA22 TION.—Notwithstanding any other provision of this 

23 Act, if the Attorney General reasonably determines 

24 that— 


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•HR 5440 IH

1 ‘‘(A) an emergency situation exists with re2 spect to the acquisition of foreign intelligence 

3 information for which an order may be obtained 

4 under subsection (c) before an order author5 izing such acquisition can with due diligence be 

6 obtained, and 

7 ‘‘(B) the factual basis for issuance of an 

8 order under this subsection to approve such ac9 quisition exists, 

10 the Attorney General may authorize the emergency 

11 acquisition if a judge having jurisdiction under sub12 section (a)(1) is informed by the Attorney General, 

13 or a designee of the Attorney General, at the time 

14 of such authorization that the decision has been 

15 made to conduct such acquisition and if an applica16 tion in accordance with this subsection is made to a 

17 judge of the Foreign Intelligence Surveillance Court 

18 as soon as practicable, but not more than 7 days 

19 after the Attorney General authorizes such acquisi20 tion. 

21 ‘‘(2) MINIMIZATION PROCEDURES.—If the At22 torney General authorizes such emergency acquisi23 tion, the Attorney General shall require that the 

24 minimization procedures required by this section for 

25 the issuance of a judicial order be followed. 


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•HR 5440 IH

1 ‘‘(3) TERMINATION OF EMERGENCY AUTHOR2 IZATION.—In the absence of a judicial order approv3 ing such acquisition, the acquisition shall terminate 

4 when the information sought is obtained, when the 

5 application for the order is denied, or after the expi6 ration of 7 days from the time of authorization by 

7 the Attorney General, whichever is earliest. 

8 ‘‘(4) USE OF INFORMATION.—In the event that 

9 such application for approval is denied, or in any 

10 other case where the acquisition is terminated and 

11 no order is issued approving the acquisition, no in12 formation obtained or evidence derived from such ac13 quisition, except under circumstances in which the 

14 target of the acquisition is determined not to be a 

15 United States person during the pendency of the 7- 

16 day emergency acquisition period, shall be received 

17 in evidence or otherwise disclosed in any trial, hear18 ing, or other proceeding in or before any court, 

19 grand jury, department, office, agency, regulatory 

20 body, legislative committee, or other authority of the 

21 United States, a State, or political subdivision there22 of, and no information concerning any United States 

23 person acquired from such acquisition shall subse24 quently be used or disclosed in any other manner by 

25 Federal officers or employees without the consent of 


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•HR 5440 IH

1 such person, except with the approval of the Attor2 ney General if the information indicates a threat of 

3 death or serious bodily harm to any person. 

4 ‘‘(e) RELEASE FROM LIABILITY.—Notwithstanding 

5 any other law, no cause of action shall lie in any court 

6 against any electronic communication service provider for 

7 providing any information, facilities, or assistance in ac8 cordance with an order or request for emergency assist9 ance issued pursuant to subsections (c) or (d). 

10 ‘‘(f) APPEAL.— 

11 ‘‘(1) APPEAL TO THE FOREIGN INTELLIGENCE

12 SURVEILLANCE COURT OF REVIEW.—The Govern13 ment may file an appeal with the Foreign Intel14 ligence Surveillance Court of Review for review of an 

15 order issued pursuant to subsection (c). The Court 

16 of Review shall have jurisdiction to consider such ap17 peal and shall provide a written statement for the 

18 record of the reasons for a decision under this para19 graph. 

20 ‘‘(2) CERTIORARI TO THE SUPREME COURT.— 

21 The Government may file a petition for a writ of 

22 certiorari for review of the decision of the Court of 

23 Review issued under paragraph (1). The record for 

24 such review shall be transmitted under seal to the 


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•HR 5440 IH

1 Supreme Court of the United States, which shall 

2 have jurisdiction to review such decision. 

3 ‘‘SEC. 705. OTHER ACQUISITIONS TARGETING UNITED 

4 STATES PERSONS OUTSIDE THE UNITED 

5 STATES. 

6 ‘‘(a) JURISDICTION AND SCOPE.— 

7 ‘‘(1) JURISDICTION.—The Foreign Intelligence 

8 Surveillance Court shall have jurisdiction to enter an 

9 order pursuant to subsection (c). 

10 ‘‘(2) SCOPE.—No element of the intelligence 

11 community may intentionally target, for the purpose 

12 of acquiring foreign intelligence information, a 

13 United States person reasonably believed to be lo14 cated outside the United States under circumstances 

15 in which the targeted United States person has a 

16 reasonable expectation of privacy and a warrant 

17 would be required if the acquisition were conducted 

18 inside the United States for law enforcement pur19 poses, unless a judge of the Foreign Intelligence 

20 Surveillance Court has entered an order or the At21 torney General has authorized an emergency acquisi22 tion pursuant to subsections (c) or (d) or any other 

23 provision of this Act. 

24 ‘‘(3) LIMITATIONS.— 


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•HR 5440 IH

1 ‘‘(A) MOVING OR MISIDENTIFIED TAR2 GETS.—In the event that the targeted United 

3 States person is reasonably believed to be in the 

4 United States during the pendency of an order 

5 issued pursuant to subsection (c), such acquisi6 tion shall cease until authority is obtained pur7 suant to this Act or the targeted United States 

8 person is again reasonably believed to be lo9 cated outside the United States during the 

10 pendency of an order issued pursuant to sub11 section (c). 

12 ‘‘(B) APPLICABILITY.—If the acquisition is 

13 to be conducted inside the United States and 

14 could be authorized under section 704, the pro15 cedures of section 704 shall apply, unless an 

16 order or emergency acquisition authority has 

17 been obtained under a provision of this Act 

18 other than under this section. 

19 ‘‘(b) APPLICATION.—Each application for an order 

20 under this section shall be made by a Federal officer in 

21 writing upon oath or affirmation to a judge having juris22 diction under subsection (a)(1). Each application shall re23 quire the approval of the Attorney General based upon the 

24 Attorney General’s finding that it satisfies the criteria and 


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•HR 5440 IH

1 requirements of such application as set forth in this sec2 tion and shall include— 

3 ‘‘(1) the identity, if known, or a description of 

4 the specific United States person who is the target 

5 of the acquisition; 

6 ‘‘(2) a statement of the facts and circumstances 

7 relied upon to justify the applicant’s belief that the 

8 United States person who is the target of the acqui9 sition is— 

10 ‘‘(A) a person reasonably believed to be lo11 cated outside the United States; and 

12 ‘‘(B) a foreign power, an agent of a foreign 

13 power, or an officer or employee of a foreign 

14 power; 

15 ‘‘(3) a statement of the proposed minimization 

16 procedures that meet the definition of minimization 

17 procedures under section 101(h) or section 301(4); 

18 ‘‘(4) a certification made by the Attorney Gen19 eral, an official specified in section 104(a)(6), or the 

20 head of an element of the intelligence community 

21 that— 

22 ‘‘(A) the certifying official deems the infor23 mation sought to be foreign intelligence infor24 mation; and 


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•HR 5440 IH

1 ‘‘(B) a significant purpose of the acquisi2 tion is to obtain foreign intelligence informa3 tion; 

4 ‘‘(5) a statement of the facts concerning any 

5 previous applications that have been made to any 

6 judge of the Foreign Intelligence Surveillance Court 

7 involving the United States person specified in the 

8 application and the action taken on each previous 

9 application; and 

10 ‘‘(6) a statement of the period of time for which 

11 the acquisition is required to be maintained, pro12 vided that such period of time shall not exceed 90 

13 days per application. 

14 ‘‘(c) ORDER.— 

15 ‘‘(1) FINDINGS.—If, upon an application made 

16 pursuant to subsection (b), a judge having jurisdic17 tion under subsection (a) finds that— 

18 ‘‘(A) on the basis of the facts submitted by 

19 the applicant, for the United States person who 

20 is the target of the acquisition, there is prob21 able cause to believe that the target is— 

22 ‘‘(i) a person reasonably believed to be 

23 located outside the United States; and 


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•HR 5440 IH

1 ‘‘(ii) a foreign power, an agent of a 

2 foreign power, or an officer or employee of 

3 a foreign power; 

4 ‘‘(B) the proposed minimization proce5 dures, with respect to their dissemination provi6 sions, meet the definition of minimization pro7 cedures under section 101(h) or section 301(4); 

8 and 

9 ‘‘(C) the application which has been filed 

10 contains all statements and certifications re11 quired by subsection (b) and the certification 

12 provided under subsection (b)(4) is not clearly 

13 erroneous on the basis of the information fur14 nished under subsection (b), 

15 the Court shall issue an ex parte order so stating. 

16 ‘‘(2) PROBABLE CAUSE.—In determining 

17 whether or not probable cause exists for purposes of 

18 an order under paragraph (1)(A), a judge having ju19 risdiction under subsection (a)(1) may consider past 

20 activities of the target, as well as facts and cir21 cumstances relating to current or future activities of 

22 the target. However, no United States person may 

23 be considered a foreign power, agent of a foreign 

24 power, or officer or employee of a foreign power 

25 solely upon the basis of activities protected by the 


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•HR 5440 IH

1 first amendment to the Constitution of the United 

2 States. 

3 ‘‘(3) REVIEW.— 

4 ‘‘(A) LIMITATIONS ON REVIEW.—Review 

5 by a judge having jurisdiction under subsection 

6 (a)(1) shall be limited to that required to make 

7 the findings described in paragraph (1). The 

8 judge shall not have jurisdiction to review the 

9 means by which an acquisition under this sec10 tion may be conducted. 

11 ‘‘(B) REVIEW OF PROBABLE CAUSE.—If 

12 the judge determines that the facts submitted 

13 under subsection (b) are insufficient to estab14 lish probable cause to issue an order under this 

15 subsection, the judge shall enter an order so 

16 stating and provide a written statement for the 

17 record of the reasons for such determination. 

18 The Government may appeal an order under 

19 this clause pursuant to subsection (e). 

20 ‘‘(C) REVIEW OF MINIMIZATION PROCE21 DURES.—If the judge determines that the mini22 mization procedures applicable to dissemination 

23 of information obtained through an acquisition 

24 under this subsection do not meet the definition 

25 of minimization procedures under section 


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•HR 5440 IH

1 101(h) or section 301(4), the judge shall enter 

2 an order so stating and provide a written state3 ment for the record of the reasons for such de4 termination. The Government may appeal an 

5 order under this clause pursuant to subsection 

6 (e). 

7 ‘‘(D) SCOPE OF REVIEW OF CERTIFI8 CATION.—If the judge determines that the cer9 tification provided under subsection (b)(4) is 

10 clearly erroneous on the basis of the informa11 tion furnished under subsection (b), the judge 

12 shall enter an order so stating and provide a 

13 written statement for the record of the reasons 

14 for such determination. The Government may 

15 appeal an order under this subparagraph pursu16 ant to subsection (e). 

17 ‘‘(4) DURATION.—An order under this para18 graph shall be effective for a period not to exceed 90 

19 days and such order may be renewed for additional 

20 90-day periods upon submission of renewal applica21 tions meeting the requirements of subsection (b). 

22 ‘‘(5) COMPLIANCE.—At or prior to the end of 

23 the period of time for which an order or extension 

24 is granted under this section, the judge may assess 

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1 viewing the circumstances under which information 

2 concerning United States persons was disseminated, 

3 provided that the judge may not inquire into the cir4 cumstances relating to the conduct of the acquisi5 tion. 

6 ‘‘(d) EMERGENCY AUTHORIZATION.— 

7 ‘‘(1) AUTHORITY FOR EMERGENCY AUTHORIZA8 TION.—Notwithstanding any other provision in this 

9 subsection, if the Attorney General reasonably deter10 mines that— 

11 ‘‘(A) an emergency situation exists with re12 spect to the acquisition of foreign intelligence 

13 information for which an order may be obtained 

14 under subsection (c) before an order under that 

15 subsection may, with due diligence, be obtained, 

16 and 

17 ‘‘(B) the factual basis for issuance of an 

18 order under this section exists, 

19 the Attorney General may authorize the emergency 

20 acquisition if a judge having jurisdiction under sub21 section (a)(1) is informed by the Attorney General 

22 or a designee of the Attorney General at the time of 

23 such authorization that the decision has been made 

24 to conduct such acquisition and if an application in 

25 accordance with this subsection is made to a judge 


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•HR 5440 IH

1 of the Foreign Intelligence Surveillance Court as 

2 soon as practicable, but not more than 7 days after 

3 the Attorney General authorizes such acquisition. 

4 ‘‘(2) MINIMIZATION PROCEDURES.—If the At5 torney General authorizes such emergency acquisi6 tion, the Attorney General shall require that the 

7 minimization procedures required by this section be 

8 followed. 

9 ‘‘(3) TERMINATION OF EMERGENCY AUTHOR10 IZATION.—In the absence of an order under sub11 section (c), the acquisition shall terminate when the 

12 information sought is obtained, if the application for 

13 the order is denied, or after the expiration of 7 days 

14 from the time of authorization by the Attorney Gen15 eral, whichever is earliest. 

16 ‘‘(4) USE OF INFORMATION.—In the event that 

17 such application is denied, or in any other case 

18 where the acquisition is terminated and no order is 

19 issued approving the acquisition, no information ob20 tained or evidence derived from such acquisition, ex21 cept under circumstances in which the target of the 

22 acquisition is determined not to be a United States 

23 person during the pendency of the 7-day emergency 

24 acquisition period, shall be received in evidence or 

25 otherwise disclosed in any trial, hearing, or other 


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•HR 5440 IH

1 proceeding in or before any court, grand jury, de2 partment, office, agency, regulatory body, legislative 

3 committee, or other authority of the United States, 

4 a State, or political subdivision thereof, and no in5 formation concerning any United States person ac6 quired from such acquisition shall subsequently be 

7 used or disclosed in any other manner by Federal of8 ficers or employees without the consent of such per9 son, except with the approval of the Attorney Gen10 eral if the information indicates a threat of death or 

11 serious bodily harm to any person. 

12 ‘‘(e) APPEAL.— 

13 ‘‘(1) APPEAL TO THE COURT OF REVIEW.—The 

14 Government may file an appeal with the Foreign In15 telligence Surveillance Court of Review for review of 

16 an order issued pursuant to subsection (c). The 

17 Court of Review shall have jurisdiction to consider 

18 such appeal and shall provide a written statement 

19 for the record of the reasons for a decision under 

20 this paragraph. 

21 ‘‘(2) CERTIORARI TO THE SUPREME COURT.— 

22 The Government may file a petition for a writ of 

23 certiorari for review of the decision of the Court of 

24 Review issued under paragraph (1). The record for 

25 such review shall be transmitted under seal to the 


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•HR 5440 IH

1 Supreme Court of the United States, which shall 

2 have jurisdiction to review such decision. 

3 ‘‘SEC. 706. JOINT APPLICATIONS AND CONCURRENT AU4 THORIZATIONS. 

5 ‘‘(a) JOINT APPLICATIONS AND ORDERS.—If an ac6 quisition targeting a United States person under section 

7 704 or section 705 is proposed to be conducted both inside 

8 and outside the United States, a judge having jurisdiction 

9 under section 704(a)(1) or section 705(a)(1) may issue si10 multaneously, upon the request of the Government in a 

11 joint application complying with the requirements of sec12 tion 704(b) or section 705(b), orders under section 704(c) 

13 or section 705(c), as applicable. 

14 ‘‘(b) CONCURRENT AUTHORIZATION.—If an order 

15 authorizing electronic surveillance or physical search has 

16 been obtained under section 105 or section 304 and that 

17 order is still in effect, the Attorney General may authorize, 

18 without an order under section 704 or section 705, an ac19 quisition of foreign intelligence information targeting that 

20 United States person while such person is reasonably be21 lieved to be located outside the United States. 

22 ‘‘SEC. 707. USE OF INFORMATION ACQUIRED UNDER TITLE 

23 VII. 

24 ‘‘(a) INFORMATION ACQUIRED UNDER SECTION

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1 ducted under section 703 shall be deemed to be informa2 tion acquired from an electronic surveillance pursuant to 

3 title I for purposes of section 106, except for the purposes 

4 of subsection (j) of such section. 

5 ‘‘(b) INFORMATION ACQUIRED UNDER SECTION

6 704.—Information acquired from an acquisition con7 ducted under section 704 shall be deemed to be informa8 tion acquired from an electronic surveillance pursuant to 

9 title I for purposes of section 106. 

10 ‘‘SEC. 708. CONGRESSIONAL OVERSIGHT. 

11 ‘‘(a) SEMIANNUAL REPORT.—Not less frequently 

12 than once every 6 months, the Attorney General shall fully 

13 inform, in a manner consistent with national security, the 

14 congressional intelligence committees, the Committee on 

15 the Judiciary of the Senate, and the Committee on the 

16 Judiciary of the House of Representatives, concerning the 

17 implementation of this title. 

18 ‘‘(b) CONTENT.—Each report made under subpara19 graph (a) shall include— 

20 ‘‘(1) with respect to section 703— 

21 ‘‘(A) any certifications made under sub22 section 703(f) during the reporting period; 

23 ‘‘(B) any directives issued under sub24 section 703(g) during the reporting period; 


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1 ‘‘(C) a description of the judicial review 

2 during the reporting period of any such certifi3 cations and targeting and minimization proce4 dures utilized with respect to such acquisition, 

5 including a copy of any order or pleading in 

6 connection with such review that contains a sig7 nificant legal interpretation of the provisions of 

8 this section; 

9 ‘‘(D) any actions taken to challenge or en10 force a directive under paragraphs (4) or (5) of 

11 section 703(g); 

12 ‘‘(E) any compliance reviews conducted by 

13 the Department of Justice or the Office of the 

14 Director of National Intelligence of acquisitions 

15 authorized under subsection 703(a); 

16 ‘‘(F) a description of any incidents of non17 compliance with a directive issued by the Attor18 ney General and the Director of National Intel19 ligence under subsection 703(g), including— 

20 ‘‘(i) incidents of noncompliance by an 

21 element of the intelligence community with 

22 procedures adopted pursuant to sub23 sections (d) and (e) of section 703; and 

24 ‘‘(ii) incidents of noncompliance by a 

25 specified person to whom the Attorney 


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1 General and Director of National Intel2 ligence issued a directive under subsection 

3 703(g); and 

4 ‘‘(G) any procedures implementing this 

5 section; 

6 ‘‘(2) with respect to section 704— 

7 ‘‘(A) the total number of applications made 

8 for orders under section 704(b); 

9 ‘‘(B) the total number of such orders ei10 ther granted, modified, or denied; and 

11 ‘‘(C) the total number of emergency acqui12 sitions authorized by the Attorney General 

13 under section 704(d) and the total number of 

14 subsequent orders approving or denying such 

15 acquisitions; and 

16 ‘‘(3) with respect to section 705— 

17 ‘‘(A) the total number of applications made 

18 for orders under 705(b); 

19 ‘‘(B) the total number of such orders ei20 ther granted, modified, or denied; and 

21 ‘‘(C) the total number of emergency acqui22 sitions authorized by the Attorney General 

23 under subsection 705(d) and the total number 

24 of subsequent orders approving or denying such 

25 applications.’’. 


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1 (b) TABLE OF CONTENTS.—The table of contents in 

2 the first section of the Foreign Intelligence Surveillance 

3 Act of 1978 (50 U.S.C. 1801 et. seq.) is amended— 

4 (1) by striking the item relating to title VII; 

5 (2) by striking the item relating to section 701; 

6 and 

7 (3) by adding at the end the following: 

‘‘TITLE VII—ADDITIONAL PROCEDURES REGARDING CERTAIN 

PERSONS OUTSIDE THE UNITED STATES 

‘‘Sec. 701. Limitation on definition of electronic surveillance. 

‘‘Sec. 702. Definitions. 

‘‘Sec. 703. Procedures for targeting certain persons outside the United States 

other than United States persons. 

‘‘Sec. 704. Certain acquisitions inside the United States of United States persons outside the United States. 

‘‘Sec. 705. Other acquisitions targeting United States persons outside the 

United States. 

‘‘Sec. 706. Joint applications and concurrent authorizations. 

‘‘Sec. 707. Use of information acquired under title VII. 

‘‘Sec. 708. Congressional oversight.’’. 

8 (c) TECHNICAL AND CONFORMING AMENDMENTS.— 

9 (1) TITLE 18, UNITED STATES CODE.— 

10 (A) SECTION 2232.—Section 2232(e) of 

11 title 18, United States Code, is amended by in12 serting ‘‘(as defined in section 101(f) of the 

13 Foreign Intelligence Surveillance Act of 1978, 

14 regardless of the limitation of section 701 of 

15 that Act)’’ after ‘‘electronic surveillance’’. 

16 (B) SECTION 2511.—Section 

17 2511(2)(a)(ii)(A) of title 18, United States 

18 Code, is amended by inserting ‘‘or a court order 

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1 ligence Surveillance Act of 1978’’ after ‘‘assist2 ance’’. 

3 (2) FOREIGN INTELLIGENCE SURVEILLANCE

4 ACT OF 1978.— 

5 (A) SECTION 109.—Section 109 of the For6 eign Intelligence Surveillance Act of 1978 (50 

7 U.S.C. 1809) is amended by adding at the end 

8 the following: 

9 ‘‘(e) DEFINITION.—For the purpose of this section, 

10 the term ‘electronic surveillance’ means electronic surveil11 lance as defined in section 101(f) of this Act regardless 

12 of the limitation of section 701 of this Act.’’. 

13 (B) SECTION 110.—Section 110 of the For14 eign Intelligence Surveillance Act of 1978 (50 

15 U.S.C. 1810) is amended by— 

16 (i) adding an ‘‘(a)’’ before ‘‘CIVIL AC17 TION’’; 

18 (ii) redesignating subsections (a) 

19 through (c) as paragraphs (1) through (3), 

20 respectively; and 

21 (iii) adding at the end the following: 

22 ‘‘(b) DEFINITION.—For the purpose of this section, 

23 the term ‘electronic surveillance’ means electronic surveil24 lance as defined in section 101(f) of this Act regardless 

25 of the limitation of section 701 of this Act.’’. 


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1 (C) SECTION 601.—Section 601(a)(1) of 

2 the Foreign Intelligence Surveillance Act of 

3 1978 (50 U.S.C. 1871(a)(1)) is amended by 

4 striking subparagraphs (C) and (D) and insert5 ing the following: 

6 ‘‘(C) pen registers under section 402; 

7 ‘‘(D) access to records under section 501; 

8 ‘‘(E) acquisitions under section 704; and 

9 ‘‘(F) acquisitions under section 705;’’. 

10 (d) TERMINATION OF AUTHORITY.— 

11 (1) IN GENERAL.—Except as provided in para12 graph (2), the amendments made by subsections 

13 (a)(2), (b), and (c) shall cease to have effect on De14 cember 31, 2013. 

15 (2) CONTINUING APPLICABILITY.—Section 

16 703(g)(3) of the Foreign Intelligence Surveillance 

17 Act of 1978 (as amended by subsection (a)) shall re18 main in effect with respect to any directive issued 

19 pursuant to section 703(g) of that Act (as so 

20 amended) for information, facilities, or assistance 

21 provided during the period such directive was or is 

22 in effect. Section 704(e) of the Foreign Intelligence 

23 Surveillance Act of 1978 (as amended by subsection 

24 (a)) shall remain in effect with respect to an order 

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1 tion. The use of information acquired by an acquisi2 tion conducted under section 703 of that Act (as so 

3 amended) shall continue to be governed by the provi4 sions of section 707 of that Act (as so amended). 

5 SEC. 102. STATEMENT OF EXCLUSIVE MEANS BY WHICH 

6 ELECTRONIC SURVEILLANCE AND INTERCEP7 TION OF DOMESTIC COMMUNICATIONS MAY 

8 BE CONDUCTED. 

9 (a) STATEMENT OF EXCLUSIVE MEANS.—Title I of 

10 the Foreign Intelligence Surveillance Act of 1978 (50 

11 U.S.C. 1801 et seq.) is amended by adding at the end 

12 the following new section: 

13 ‘‘STATEMENT OF EXCLUSIVE MEANS BY WHICH ELEC14 TRONIC SURVEILLANCE AND INTERCEPTION OF DO15 MESTIC COMMUNICATIONS MAY BE CONDUCTED

16 ‘‘SEC. 112. The procedures of chapters 119, 121, and 

17 206 of title 18, United States Code, and this Act shall 

18 be the exclusive means by which electronic surveillance (as 

19 defined in section 101(f), regardless of the limitation of 

20 section 701) and the interception of domestic wire, oral, 

21 or electronic communications may be conducted.’’. 

22 (b) TABLE OF CONTENTS.—The table of contents in 

23 the first section of the Foreign Intelligence Surveillance 

24 Act of 1978 (50 U.S.C. 1801 et seq.) is amended by add25 ing after the item relating to section 111, the following: 


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‘‘Sec. 112. Statement of exclusive means by which electronic surveillance and 

interception of domestic communications may be conducted.’’. 

1 (c) CONFORMING AMENDMENTS.—Section 2511(2) 

2 of title 18, United States Code, is amended in paragraph 

3 (f), by striking ‘‘, as defined in section 101 of such Act,’’ 

4 and inserting ‘‘(as defined in section 101(f) of such Act 

5 regardless of the limitation of section 701 of such Act)’’. 

6 SEC. 103. SUBMITTAL TO CONGRESS OF CERTAIN COURT 

7 ORDERS UNDER THE FOREIGN INTEL8 LIGENCE SURVEILLANCE ACT OF 1978. 

9 (a) INCLUSION OF CERTAIN ORDERS IN SEMIANNUAL

10 REPORTS OF ATTORNEY GENERAL.—Subsection (a)(5) of 

11 section 601 of the Foreign Intelligence Surveillance Act 

12 of 1978 (50 U.S.C. 1871) is amended by striking ‘‘(not 

13 including orders)’’ and inserting ‘‘, orders,’’. 

14 (b) REPORTS BY ATTORNEY GENERAL ON CERTAIN

15 OTHER ORDERS.—Such section 601 is further amended 

16 by adding at the end the following: 

17 ‘‘(c) SUBMISSIONS TO CONGRESS.—The Attorney 

18 General shall submit to the committees of Congress re19 ferred to in subsection (a)— 

20 ‘‘(1) a copy of any decision, order, or opinion 

21 issued by the Foreign Intelligence Surveillance Court 

22 or the Foreign Intelligence Surveillance Court of Re23 view that includes significant construction or inter24 pretation of any provision of this Act, and any 


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1 pleadings, applications, or memoranda of law associ2 ated with such decision, order, or opinion, not later 

3 than 45 days after such decision, order, or opinion 

4 is issued; and 

5 ‘‘(2) a copy of any such decision, order, or opin6 ion, and any pleadings, applications, or memoranda 

7 of law associated with such decision, order, or opin8 ion, that was issued during the 5-year period ending 

9 on the date of the enactment of the FISA Amend10 ments Act of 2008 and not previously submitted in 

11 a report under subsection (a). 

12 ‘‘(d) PROTECTION OF NATIONAL SECURITY.—The 

13 Attorney General, in consultation with the Director of Na14 tional Intelligence, may authorize redactions of materials 

15 described in subsection (c) that are provided to the com16 mittees of Congress referred to in subsection (a), if such 

17 redactions are necessary to protect the national security 

18 of the United States and are limited to sensitive sources 

19 and methods information or the identities of targets.’’. 

20 (c) DEFINITIONS.—Such section 601, as amended by 

21 subsections (a) and (b), is further amended by adding at 

22 the end the following: 

23 ‘‘(e) DEFINITIONS.—In this section: 

24 ‘‘(1) FOREIGN INTELLIGENCE SURVEILLANCE

25 COURT; COURT.—The term ‘‘ ‘Foreign Intelligence 


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1 Surveillance Court’ ’’ means the court established by 

2 section 103(a). 

3 ‘‘(2) FOREIGN INTELLIGENCE SURVEILLANCE

4 COURT OF REVIEW; COURT OF REVIEW.—The term 

5 ‘Foreign Intelligence Surveillance Court of Review’ 

6 means the court established by section 103(b).’’. 

7 SEC. 104. APPLICATIONS FOR COURT ORDERS. 

8 Section 104 of the Foreign Intelligence Surveillance 

9 Act of 1978 (50 U.S.C. 1804) is amended— 

10 (1) in subsection (a)— 

11 (A) by striking paragraphs (2) and (11); 

12 (B) by redesignating paragraphs (3) 

13 through (10) as paragraphs (2) through (9), re14 spectively; 

15 (C) in paragraph (5), as redesignated by 

16 subparagraph (B) of this paragraph, by striking 

17 ‘‘detailed’’; 

18 (D) in paragraph (6), as redesignated by 

19 subparagraph (B) of this paragraph, in the 

20 matter preceding subparagraph (A)— 

21 (i) by striking ‘‘Affairs or’’ and insert22 ing ‘‘Affairs,’’; and 

23 (ii) by striking ‘‘Senate—’’ and insert24 ing ‘‘Senate, or the Deputy Director of the 

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1 ignated by the President as a certifying of2 ficial—’’; 

3 (E) in paragraph (7), as redesignated by 

4 subparagraph (B) of this paragraph, by striking 

5 ‘‘statement of’’ and inserting ‘‘summary state6 ment of’’; 

7 (F) in paragraph (8), as redesignated by 

8 subparagraph (B) of this paragraph, by adding 

9 ‘‘and’’ at the end; and 

10 (G) in paragraph (9), as redesignated by 

11 subparagraph (B) of this paragraph, by striking 

12 ‘‘; and’’ and inserting a period; 

13 (2) by striking subsection (b); 

14 (3) by redesignating subsections (c) through (e) 

15 as subsections (b) through (d), respectively; and 

16 (4) in paragraph (1)(A) of subsection (d), as re17 designated by paragraph (3) of this subsection, by 

18 striking ‘‘or the Director of National Intelligence’’ 

19 and inserting ‘‘the Director of National Intelligence, 

20 or the Director of the Central Intelligence Agency’’. 

21 SEC. 105. ISSUANCE OF AN ORDER. 

22 Section 105 of the Foreign Intelligence Surveillance 

23 Act of 1978 (50 U.S.C. 1805) is amended— 

24 (1) in subsection (a)— 

25 (A) by striking paragraph (1); and 


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1 (B) by redesignating paragraphs (2) 

2 through (5) as paragraphs (1) through (4), re3 spectively; 

4 (2) in subsection (b), by striking ‘‘(a)(3)’’ and 

5 inserting ‘‘(a)(2)’’; 

6 (3) in subsection (c)(1)— 

7 (A) in subparagraph (D), by adding ‘‘and’’ 

8 at the end; 

9 (B) in subparagraph (E), by striking ‘‘; 

10 and’’ and inserting a period; and 

11 (C) by striking subparagraph (F); 

12 (4) by striking subsection (d); 

13 (5) by redesignating subsections (e) through (i) 

14 as subsections (d) through (h), respectively; 

15 (6) by amending subsection (e), as redesignated 

16 by paragraph (5) of this section, to read as follows: 

17 ‘‘(e)(1) Notwithstanding any other provision of this 

18 title, the Attorney General may authorize the emergency 

19 employment of electronic surveillance if the Attorney Gen20 eral— 

21 ‘‘(A) reasonably determines that an emergency 

22 situation exists with respect to the employment of 

23 electronic surveillance to obtain foreign intelligence 

24 information before an order authorizing such surveil25 lance can with due diligence be obtained; 


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1 ‘‘(B) resonably determines that the factual 

2 basis for issuance of an order under this title to ap3 prove such electronic surveillance exists; 

4 ‘‘(C) informs, either personally or through a 

5 designee, a judge having jurisdiction under section 

6 103 at the time of such authorization that the deci7 sion has been made to employ emergency electronic 

8 surveillance; and 

9 ‘‘(D) makes an application in accordance with 

10 this title to a judge having jurisdiction under section 

11 103 as soon as practicable, but not later than 7 days 

12 after the Attorney General authorizes such surveil13 lance. 

14 ‘‘(2) If the Attorney General authorizes the emer15 gency employment of electronic surveillance under para16 graph (1), the Attorney General shall require that the 

17 minimization procedures required by this title for the 

18 issuance of a judicial order be followed. 

19 ‘‘(3) In the absence of a judicial order approving such 

20 electronic surveillance, the surveillance shall terminate 

21 when the information sought is obtained, when the appli22 cation for the order is denied, or after the expiration of 

23 7 days from the time of authorization by the Attorney 

24 General, whichever is earliest. 


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1 ‘‘(4) A denial of the application made under this sub2 section may be reviewed as provided in section 103. 

3 ‘‘(5) In the event that such application for approval 

4 is denied, or in any other case where the electronic surveil5 lance is terminated and no order is issued approving the 

6 surveillance, no information obtained or evidence derived 

7 from such surveillance shall be received in evidence or oth8 erwise disclosed in any trial, hearing, or other proceeding 

9 in or before any court, grand jury, department, office, 

10 agency, regulatory body, legislative committee, or other 

11 authority of the United States, a State, or political sub12 division thereof, and no information concerning any 

13 United States person acquired from such surveillance shall 

14 subsequently be used or disclosed in any other manner by 

15 Federal officers or employees without the consent of such 

16 person, except with the approval of the Attorney General 

17 if the information indicates a threat of death or serious 

18 bodily harm to any person. 

19 ‘‘(6) The Attorney General shall assess compliance 

20 with the requirements of paragraph (5).’’; and 

21 (7) by adding at the end the following: 

22 ‘‘(i) In any case in which the Government makes an 

23 application to a judge under this title to conduct electronic 

24 surveillance involving communications and the judge 

25 grants such application, upon the request of the applicant, 


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1 the judge shall also authorize the installation and use of 

2 pen registers and trap and trace devices, and direct the 

3 disclosure of the information set forth in section 

4 402(d)(2).’’. 

5 SEC. 106. USE OF INFORMATION. 

6 Subsection (i) of section 106 of the Foreign Intel7 ligence Surveillance Act of 1978 (8 U.S.C. 1806) is 

8 amended by striking ‘‘radio communication’’ and inserting 

9 ‘‘communication’’. 

10 SEC. 107. AMENDMENTS FOR PHYSICAL SEARCHES. 

11 (a) APPLICATIONS.—Section 303 of the Foreign In12 telligence Surveillance Act of 1978 (50 U.S.C. 1823) is 

13 amended— 

14 (1) in subsection (a)— 

15 (A) by striking paragraph (2); 

16 (B) by redesignating paragraphs (3) 

17 through (9) as paragraphs (2) through (8), re18 spectively; 

19 (C) in paragraph (2), as redesignated by 

20 subparagraph (B) of this paragraph, by striking 

21 ‘‘detailed’’; 

22 (D) in paragraph (3)(C), as redesignated 

23 by subparagraph (B) of this paragraph, by in24 serting ‘‘or is about to be’’ before ‘‘owned’’; and 


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1 (E) in paragraph (6), as redesignated by 

2 subparagraph (B) of this paragraph, in the 

3 matter preceding subparagraph (A)— 

4 (i) by striking ‘‘Affairs or’’ and insert5 ing ‘‘Affairs,’’; and 

6 (ii) by striking ‘‘Senate—’’ and insert7 ing ‘‘Senate, or the Deputy Director of the 

8 Federal Bureau of Investigation, if des9 ignated by the President as a certifying of10 ficial—’’; and 

11 (2) in subsection (d)(1)(A), by striking ‘‘or the 

12 Director of National Intelligence’’ and inserting ‘‘the 

13 Director of National Intelligence, or the Director of 

14 the Central Intelligence Agency’’. 

15 (b) ORDERS.—Section 304 of the Foreign Intel16 ligence Surveillance Act of 1978 (50 U.S.C. 1824) is 

17 amended— 

18 (1) in subsection (a)— 

19 (A) by striking paragraph (1); and 

20 (B) by redesignating paragraphs (2) 

21 through (5) as paragraphs (1) through (4), re22 spectively; and 

23 (2) by amending subsection (e) to read as fol24 lows: 


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1 ‘‘(e)(1) Notwithstanding any other provision of this 

2 title, the Attorney General may authorize the emergency 

3 employment of a physical search if the Attorney General 

4 reasonably— 

5 ‘‘(A) determines that an emergency situation 

6 exists with respect to the employment of a physical 

7 search to obtain foreign intelligence information be8 fore an order authorizing such physical search can 

9 with due diligence be obtained; 

10 ‘‘(B) determines that the factual basis for 

11 issuance of an order under this title to approve such 

12 physical search exists; 

13 ‘‘(C) informs, either personally or through a 

14 designee, a judge of the Foreign Intelligence Surveil15 lance Court at the time of such authorization that 

16 the decision has been made to employ an emergency 

17 physical search; and 

18 ‘‘(D) makes an application in accordance with 

19 this title to a judge of the Foreign Intelligence Sur20 veillance Court as soon as practicable, but not more 

21 than 7 days after the Attorney General authorizes 

22 such physical search. 

23 ‘‘(2) If the Attorney General authorizes the emer24 gency employment of a physical search under paragraph 

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1 tion procedures required by this title for the issuance of 

2 a judicial order be followed. 

3 ‘‘(3) In the absence of a judicial order approving such 

4 physical search, the physical search shall terminate when 

5 the information sought is obtained, when the application 

6 for the order is denied, or after the expiration of 7 days 

7 from the time of authorization by the Attorney General, 

8 whichever is earliest. 

9 ‘‘(4) A denial of the application made under this sub10 section may be reviewed as provided in section 103. 

11 ‘‘(5)(A) In the event that such application for ap12 proval is denied, or in any other case where the physical 

13 search is terminated and no order is issued approving the 

14 physical search, no information obtained or evidence de15 rived from such physical search shall be received in evi16 dence or otherwise disclosed in any trial, hearing, or other 

17 proceeding in or before any court, grand jury, department, 

18 office, agency, regulatory body, legislative committee, or 

19 other authority of the United States, a State, or political 

20 subdivision thereof, and no information concerning any 

21 United States person acquired from such physical search 

22 shall subsequently be used or disclosed in any other man23 ner by Federal officers or employees without the consent 

24 of such person, except with the approval of the Attorney 


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1 General if the information indicates a threat of death or 

2 serious bodily harm to any person. 

3 ‘‘(B) The Attorney General shall assess compliance 

4 with the requirements of subparagraph (A).’’. 

5 (c) CONFORMING AMENDMENTS.—The Foreign Intel6 ligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) 

7 is amended— 

8 (1) in section 304(a)(4), as redesignated by 

9 subsection (b) of this section, by striking 

10 ‘‘303(a)(7)(E)’’ and inserting ‘‘303(a)(6)(E)’’; and 

11 (2) in section 305(k)(2), by striking 

12 ‘‘303(a)(7)’’ and inserting ‘‘303(a)(6)’’. 

13 SEC. 108. AMENDMENTS FOR EMERGENCY PEN REGISTERS 

14 AND TRAP AND TRACE DEVICES. 

15 Section 403 of the Foreign Intelligence Surveillance 

16 Act of 1978 (50 U.S.C. 1843) is amended— 

17 (1) in subsection (a)(2), by striking ‘‘48 hours’’ 

18 and inserting ‘‘7 days’’; and 

19 (2) in subsection (c)(1)(C), by striking ‘‘48 

20 hours’’ and inserting ‘‘7 days’’. 

21 SEC. 109. FOREIGN INTELLIGENCE SURVEILLANCE COURT. 

22 (a) DESIGNATION OF JUDGES.—Subsection (a) of 

23 section 103 of the Foreign Intelligence Surveillance Act 

24 of 1978 (50 U.S.C. 1803) is amended by inserting ‘‘at 


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1 least’’ before ‘‘seven of the United States judicial cir2 cuits’’. 

3 (b) EN BANC AUTHORITY.— 

4 (1) IN GENERAL.—Subsection (a) of section 

5 103 of the Foreign Intelligence Surveillance Act of 

6 1978, as amended by subsection (a) of this section, 

7 is further amended— 

8 (A) by inserting ‘‘(1)’’ after ‘‘(a)’’; and 

9 (B) by adding at the end the following new 

10 paragraph: 

11 ‘‘(2)(A) The court established under this subsection 

12 may, on its own initiative, or upon the request of the Gov13 ernment in any proceeding or a party under section 501(f) 

14 or paragraph (4) or (5) of section 703(h), hold a hearing 

15 or rehearing, en banc, when ordered by a majority of the 

16 judges that constitute such court upon a determination 

17 that— 

18 ‘‘(i) en banc consideration is necessary to se19 cure or maintain uniformity of the court’s decisions; 

20 or 

21 ‘‘(ii) the proceeding involves a question of ex22 ceptional importance. 

23 ‘‘(B) Any authority granted by this Act to a judge 

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1 ity, the court en banc shall comply with any requirements 

2 of this Act on the exercise of such authority. 

3 ‘‘(C) For purposes of this paragraph, the court en 

4 banc shall consist of all judges who constitute the court 

5 established under this subsection.’’. 

6 (2) CONFORMING AMENDMENTS.—The Foreign 

7 Intelligence Surveillance Act of 1978 is further 

8 amended— 

9 (A) in subsection (a) of section 103, as 

10 amended by this subsection, by inserting ‘‘(ex11 cept when sitting en banc under paragraph 

12 (2))’’ after ‘‘no judge designated under this 

13 subsection’’; and 

14 (B) in section 302(c) (50 U.S.C. 1822(c)), 

15 by inserting ‘‘(except when sitting en banc)’’ 

16 after ‘‘except that no judge’’. 

17 (c) STAY OR MODIFICATION DURING AN APPEAL.— 

18 Section 103 of the Foreign Intelligence Surveillance Act 

19 of 1978 (50 U.S.C. 1803) is amended— 

20 (1) by redesignating subsection (f) as sub21 section (g); and 

22 (2) by inserting after subsection (e) the fol23 lowing new subsection: 

24 ‘‘(f)(1) A judge of the court established under sub25 section (a), the court established under subsection (b) or 


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1 a judge of that court, or the Supreme Court of the United 

2 States or a justice of that court, may, in accordance with 

3 the rules of their respective courts, enter a stay of an order 

4 or an order modifying an order of the court established 

5 under subsection (a) or the court established under sub6 section (b) entered under any title of this Act, while the 

7 court established under subsection (a) conducts a rehear8 ing, while an appeal is pending to the court established 

9 under subsection (b), or while a petition of certiorari is 

10 pending in the Supreme Court of the United States, or 

11 during the pendency of any review by that court. 

12 ‘‘(2) The authority described in paragraph (1) shall 

13 apply to an order entered under any provision of this 

14 Act.’’. 

15 (d) AUTHORITY OF FOREIGN INTELLIGENCE SUR16 VEILLANCE COURT.—Section 103 of the Foreign Intel17 ligence Surveillance Act of 1978 (50 U.S.C. 1803), as 

18 amended by this Act, is amended by adding at the end 

19 the following: 

20 ‘‘(h)(1) Nothing in this Act shall be considered to re21 duce or contravene the inherent authority of the Foreign 

22 Intelligence Surveillance Court to determine, or enforce, 

23 compliance with an order or a rule of such Court or with 

24 a procedure approved by such Court. 


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1 ‘‘(2) In this subsection, the terms ‘Foreign Intel2 ligence Surveillance Court’ and ‘Court’ mean the court es3 tablished by subsection (a).’’. 

4 SEC. 110. WEAPONS OF MASS DESTRUCTION. 

5 (a) DEFINITIONS.— 

6 (1) FOREIGN POWER.—Subsection (a)(4) of sec7 tion 101 of the Foreign Intelligence Surveillance Act 

8 of 1978 (50 U.S.C. 1801(a)(4)) is amended by in9 serting ‘‘, the international proliferation of weapons 

10 of mass destruction,’’ after ‘‘international ter11 rorism’’. 

12 (2) AGENT OF A FOREIGN POWER.—Subsection 

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

14 (A) in subparagraph (B), by striking ‘‘or’’ 

15 at the end; 

16 (B) in subparagraph (C), by striking ‘‘or’’ 

17 at the end; and 

18 (C) by adding at the end the following new 

19 subparagraphs: 

20 ‘‘(D) engages in the international prolifera21 tion of weapons of mass destruction, or activi22 ties in preparation therefor; or 

23 ‘‘(E) engages in the international prolifera24 tion of weapons of mass destruction, or activiVerDate Aug 31 2005 03:48 Feb 16, 2008 Jkt 069200 PO 00000 Frm 00074 Fmt 6652 Sfmt 6201 E:\BILLS\H5440.IH H5440

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1 ties in preparation therefor, for or on behalf of 

2 a foreign power; or’’. 

3 (3) FOREIGN INTELLIGENCE INFORMATION.— 

4 Subsection (e)(1)(B) of such section 101 is amended 

5 by striking ‘‘sabotage or international terrorism’’ 

6 and inserting ‘‘sabotage, international terrorism, or 

7 the international proliferation of weapons of mass 

8 destruction’’. 

9 (4) WEAPON OF MASS DESTRUCTION.—Such 

10 section 101 is amended by inserting after subsection 

11 (o) the following: 

12 ‘‘(p) ‘Weapon of mass destruction’ means— 

13 ‘‘(1) any destructive device described in section 

14 921(a)(4)(A) of title 18, United States Code, that is 

15 intended or has the capability to cause death or seri16 ous bodily injury to a significant number of people; 

17 ‘‘(2) any weapon that is designed or intended to 

18 cause death or serious bodily injury through the re19 lease, dissemination, or impact of toxic or poisonous 

20 chemicals or their precursors; 

21 ‘‘(3) any weapon involving a biological agent, 

22 toxin, or vector (as such terms are defined in section 

23 178 of title 18, United States Code); or 


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1 ‘‘(4) any weapon that is designed to release ra2 diation or radioactivity at a level dangerous to 

3 human life.’’. 

4 (b) USE OF INFORMATION.— 

5 (1) IN GENERAL.—Section 106(k)(1)(B) of the 

6 Foreign Intelligence Surveillance Act of 1978 (50 

7 U.S.C. 1806(k)(1)(B)) is amended by striking ‘‘sab8 otage or international terrorism’’ and inserting ‘‘sab9 otage, international terrorism, or the international 

10 proliferation of weapons of mass destruction’’. 

11 (2) PHYSICAL SEARCHES.—Section 

12 305(k)(1)(B) of such Act (50 U.S.C. 1825(k)(1)(B)) 

13 is amended by striking ‘‘sabotage or international 

14 terrorism’’ and inserting ‘‘sabotage, international 

15 terrorism, or the international proliferation of weap16 ons of mass destruction’’. 

17 (c) TECHNICAL AND CONFORMING AMENDMENT.— 

18 Section 301(1) of the Foreign Intelligence Surveillance 

19 Act of 1978 (50 U.S.C. 1821(1)) is amended by inserting 

20 ‘‘ ‘weapon of mass destruction’,’’ after ‘‘ ‘person’,’’. 

21 SEC. 111. TECHNICAL AND CONFORMING AMENDMENTS. 

22 Section 103(e) of the Foreign Intelligence Surveil23 lance Act of 1978 (50 U.S.C. 1803(e)) is amended— 

24 (1) in paragraph (1), by striking ‘‘105B(h) or 

25 501(f)(1)’’ and inserting ‘‘501(f)(1) or 703’’; and 


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1 (2) in paragraph (2), by striking ‘‘105B(h) or 

2 501(f)(1)’’ and inserting ‘‘501(f)(1) or 703’’. 

3 TITLE II—PROTECTIONS FOR 

4 ELECTRONIC COMMUNICA5 TION SERVICE PROVIDERS 

6 SEC. 201. DEFINITIONS. 

7 In this title: 

8 (1) ASSISTANCE.—The term ‘‘assistance’’ 

9 means the provision of, or the provision of access to, 

10 information (including communication contents, 

11 communications records, or other information relat12 ing to a customer or communication), facilities, or 

13 another form of assistance. 

14 (2) CONTENTS.—The term ‘‘contents’’ has the 

15 meaning given that term in section 101(n) of the 

16 Foreign Intelligence Surveillance Act of 1978 (50 

17 U.S.C. 1801(n)). 

18 (3) COVERED CIVIL ACTION.—The term ‘‘cov19 ered civil action’’ means a civil action filed in a Fed20 eral or State court that— 

21 (A) alleges that an electronic communica22 tion service provider furnished assistance to an 

23 element of the intelligence community; and 


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1 (B) seeks monetary or other relief from the 

2 electronic communication service provider re3 lated to the provision of such assistance. 

4 (4) ELECTRONIC COMMUNICATION SERVICE

5 PROVIDER.—The term ‘‘electronic communication 

6 service provider’’ means— 

7 (A) a telecommunications carrier, as that 

8 term is defined in section 3 of the Communica9 tions Act of 1934 (47 U.S.C. 153); 

10 (B) a provider of an electronic communica11 tion service, as that term is defined in section 

12 2510 of title 18, United States Code; 

13 (C) a provider of a remote computing serv14 ice, as that term is defined in section 2711 of 

15 title 18, United States Code; 

16 (D) any other communication service pro17 vider who has access to wire or electronic com18 munications either as such communications are 

19 transmitted or as such communications are 

20 stored; 

21 (E) a parent, subsidiary, affiliate, suc22 cessor, or assignee of an entity described in 

23 subparagraph (A), (B), (C), or (D); or 


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1 (F) an officer, employee, or agent of an en2 tity described in subparagraph (A), (B), (C), 

3 (D), or (E). 

4 (5) ELEMENT OF THE INTELLIGENCE COMMU5 NITY.—The term ‘‘element of the intelligence com6 munity’’ means an element of the intelligence com7 munity specified in or designated under section 3(4) 

8 of the National Security Act of 1947 (50 U.S.C. 

9 401a(4)). 

10 SEC. 202. LIMITATIONS ON CIVIL ACTIONS FOR ELEC11 TRONIC COMMUNICATION SERVICE PRO12 VIDERS. 

13 (a) LIMITATIONS.— 

14 (1) IN GENERAL.—Notwithstanding any other 

15 provision of law, a covered civil action shall not lie 

16 or be maintained in a Federal or State court, and 

17 shall be promptly dismissed, if the Attorney General 

18 certifies to the court that— 

19 (A) the assistance alleged to have been 

20 provided by the electronic communication serv21 ice provider was— 

22 (i) in connection with an intelligence 

23 activity involving communications that 

24 was— 


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1 (I) authorized by the President 

2 during the period beginning on Sep3 tember 11, 2001, and ending on Jan4 uary 17, 2007; and 

5 (II) designed to detect or prevent 

6 a terrorist attack, or activities in 

7 preparation for a terrorist attack, 

8 against the United States; and 

9 (ii) described in a written request or 

10 directive from the Attorney General or the 

11 head of an element of the intelligence com12 munity (or the deputy of such person) to 

13 the electronic communication service pro14 vider indicating that the activity was— 

15 (I) authorized by the President; 

16 and 

17 (II) determined to be lawful; or 

18 (B) the electronic communication service 

19 provider did not provide the alleged assistance. 

20 (2) REVIEW.—A certification made pursuant to 

21 paragraph (1) shall be subject to review by a court 

22 for abuse of discretion. 

23 (b) REVIEW OF CERTIFICATIONS.—If the Attorney 

24 General files a declaration under section 1746 of title 28, 

25 United States Code, that disclosure of a certification made 


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1 pursuant to subsection (a) would harm the national secu2 rity of the United States, the court shall— 

3 (1) review such certification in camera and ex 

4 parte; and 

5 (2) limit any public disclosure concerning such 

6 certification, including any public order following 

7 such an ex parte review, to a statement that the con8 ditions of subsection (a) have been met, without dis9 closing the subparagraph of subsection (a)(1) that is 

10 the basis for the certification. 

11 (c) NONDELEGATION.—The authority and duties of 

12 the Attorney General under this section shall be performed 

13 by the Attorney General (or Acting Attorney General) or 

14 a designee in a position not lower than the Deputy Attor15 ney General. 

16 (d) CIVIL ACTIONS IN STATE COURT.—A covered 

17 civil action that is brought in a State court shall be 

18 deemed to arise under the Constitution and laws of the 

19 United States and shall be removable under section 1441 

20 of title 28, United States Code. 

21 (e) RULE OF CONSTRUCTION.—Nothing in this sec22 tion may be construed to limit any otherwise available im23 munity, privilege, or defense under any other provision of 

24 law. 


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1 (f) EFFECTIVE DATE AND APPLICATION.—This sec2 tion shall apply to any covered civil action that is pending 

3 on or filed after the date of enactment of this Act. 

4 SEC. 203. PROCEDURES FOR IMPLEMENTING STATUTORY 

5 DEFENSES UNDER THE FOREIGN INTEL6 LIGENCE SURVEILLANCE ACT OF 1978. 

7 The Foreign Intelligence Surveillance Act of 1978 

8 (50 U.S.C. 1801 et seq.), as amended by section 101, is 

9 further amended by adding after title VII the following 

10 new title: 

11 ‘‘TITLE VIII—PROTECTION OF 

12 PERSONS ASSISTING THE 

13 GOVERNMENT 

14 ‘‘SEC. 801. DEFINITIONS. 

15 ‘‘In this title: 

16 ‘‘(1) ASSISTANCE.—The term ‘assistance’ 

17 means the provision of, or the provision of access to, 

18 information (including communication contents, 

19 communications records, or other information relat20 ing to a customer or communication), facilities, or 

21 another form of assistance. 

22 ‘‘(2) ATTORNEY GENERAL.—The term ‘Attor23 ney General’ has the meaning give that term in sec24 tion 101(g). 


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1 ‘‘(3) CONTENTS.—The term ‘contents’ has the 

2 meaning given that term in section 101(n). 

3 ‘‘(4) ELECTRONIC COMMUNICATION SERVICE

4 PROVIDER.—The term ‘electronic communication 

5 service provider’ means— 

6 ‘‘(A) a telecommunications carrier, as that 

7 term is defined in section 3 of the Communica8 tions Act of 1934 (47 U.S.C. 153); 

9 ‘‘(B) a provider of electronic communica10 tion service, as that term is defined in section 

11 2510 of title 18, United States Code; 

12 ‘‘(C) a provider of a remote computing 

13 service, as that term is defined in section 2711 

14 of title 18, United States Code; 

15 ‘‘(D) any other communication service pro16 vider who has access to wire or electronic com17 munications either as such communications are 

18 transmitted or as such communications are 

19 stored; 

20 ‘‘(E) a parent, subsidiary, affiliate, suc21 cessor, or assignee of an entity described in 

22 subparagraph (A), (B), (C), or (D); or 

23 ‘‘(F) an officer, employee, or agent of an 

24 entity described in subparagraph (A), (B), (C), 

25 (D), or (E). 


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1 ‘‘(5) ELEMENT OF THE INTELLIGENCE COMMU2 NITY.—The term ‘element of the intelligence com3 munity’ means an element of the intelligence com4 munity as specified or designated under section 3(4) 

5 of the National Security Act of 1947 (50 U.S.C. 

6 401a(4)). 

7 ‘‘(6) PERSON.—The term ‘person’ means— 

8 ‘‘(A) an electronic communication service 

9 provider; or 

10 ‘‘(B) a landlord, custodian, or other person 

11 who may be authorized or required to furnish 

12 assistance pursuant to— 

13 ‘‘(i) an order of the court established 

14 under section 103(a) directing such assist15 ance; 

16 ‘‘(ii) a certification in writing under 

17 section 2511(2)(a)(ii)(B) or 2709(b) of 

18 title 18, United States Code; or 

19 ‘‘(iii) a directive under section 

20 102(a)(4), 105B(e), as in effect on the day 

21 before the date of the enactment of the 

22 FISA Amendments Act of 2008 or 703(h). 

23 ‘‘(7) STATE.—The term ‘State’ means any 

24 State, political subdivision of a State, the Common25 wealth of Puerto Rico, the District of Columbia, and 


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1 any territory or possession of the United States, and 

2 includes any officer, public utility commission, or 

3 other body authorized to regulate an electronic com4 munication service provider. 

5 ‘‘SEC. 802. PROCEDURES FOR IMPLEMENTING STATUTORY 

6 DEFENSES. 

7 ‘‘(a) REQUIREMENT FOR CERTIFICATION.— 

8 ‘‘(1) IN GENERAL.—Notwithstanding any other 

9 provision of law, no civil action may lie or be main10 tained in a Federal or State court against any per11 son for providing assistance to an element of the in12 telligence community, and shall be promptly dis13 missed, if the Attorney General certifies to the court 

14 that— 

15 ‘‘(A) any assistance by that person was 

16 provided pursuant to an order of the court es17 tablished under section 103(a) directing such 

18 assistance; 

19 ‘‘(B) any assistance by that person was 

20 provided pursuant to a certification in writing 

21 under section 2511(2)(a)(ii)(B) or 2709(b) of 

22 title 18, United States Code; 

23 ‘‘(C) any assistance by that person was 

24 provided pursuant to a directive under sections 

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1 fore the date of the enactment of the FISA 

2 Amendments Act of 2008, or 703(h) directing 

3 such assistance; or 

4 ‘‘(D) the person did not provide the alleged 

5 assistance. 

6 ‘‘(2) REVIEW.—A certification made pursuant 

7 to paragraph (1) shall be subject to review by a 

8 court for abuse of discretion. 

9 ‘‘(b) LIMITATIONS ON DISCLOSURE.—If the Attorney 

10 General files a declaration under section 1746 of title 28, 

11 United States Code, that disclosure of a certification made 

12 pursuant to subsection (a) would harm the national secu13 rity of the United States, the court shall— 

14 ‘‘(1) review such certification in camera and ex 

15 parte; and 

16 ‘‘(2) limit any public disclosure concerning such 

17 certification, including any public order following 

18 such an ex parte review, to a statement that the con19 ditions of subsection (a) have been met, without dis20 closing the subparagraph of subsection (a)(1) that is 

21 the basis for the certification. 

22 ‘‘(c) REMOVAL.—A civil action against a person for 

23 providing assistance to an element of the intelligence com24 munity that is brought in a State court shall be deemed 

25 to arise under the Constitution and laws of the United 


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1 States and shall be removable under section 1441 of title 

2 28, United States Code. 

3 ‘‘(d) RELATIONSHIP TO OTHER LAWS.—Nothing in 

4 this section may be construed to limit any otherwise avail5 able immunity, privilege, or defense under any other provi6 sion of law. 

7 ‘‘(e) APPLICABILITY.—This section shall apply to a 

8 civil action pending on or filed after the date of enactment 

9 of the FISA Amendments Act of 2008.’’. 

10 SEC. 204. PREEMPTION OF STATE INVESTIGATIONS. 

11 Title VIII of the Foreign Intelligence Surveillance 

12 Act (50 U.S.C. 1801 et seq.), as added by section 203 

13 of this Act, is amended by adding at the end the following 

14 new section: 

15 ‘‘SEC. 803. PREEMPTION. 

16 ‘‘(a) IN GENERAL.—No State shall have authority 

17 to— 

18 ‘‘(1) conduct an investigation into an electronic 

19 communication service provider’s alleged assistance 

20 to an element of the intelligence community; 

21 ‘‘(2) require through regulation or any other 

22 means the disclosure of information about an elec23 tronic communication service provider’s alleged as24 sistance to an element of the intelligence community; 


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1 ‘‘(3) impose any administrative sanction on an 

2 electronic communication service provider for assist3 ance to an element of the intelligence community; or 

4 ‘‘(4) commence or maintain a civil action or 

5 other proceeding to enforce a requirement that an 

6 electronic communication service provider disclose 

7 information concerning alleged assistance to an ele8 ment of the intelligence community. 

9 ‘‘(b) SUITS BY THE UNITED STATES.—The United 

10 States may bring suit to enforce the provisions of this sec11 tion. 

12 ‘‘(c) JURISDICTION.—The district courts of the 

13 United States shall have jurisdiction over any civil action 

14 brought by the United States to enforce the provisions of 

15 this section. 

16 ‘‘(d) APPLICATION.—This section shall apply to any 

17 investigation, action, or proceeding that is pending on or 

18 filed after the date of enactment of the FISA Amendments 

19 Act of 2008.’’. 

20 SEC. 205. TECHNICAL AMENDMENTS. 

21 The table of contents in the first section of the For22 eign Intelligence Surveillance Act of 1978 (50 U.S.C. 

23 1801 et seq.), as amended by section 101(b), is further 

24 amended by adding at the end the following: 

‘‘TITLE VIII—PROTECTION OF PERSONS ASSISTING THE 

GOVERNMENT 


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‘‘Sec. 801. Definitions. 

‘‘Sec. 802. Procedures for implementing statutory defenses. 

‘‘Sec. 803. Preemption.’’. 

1 TITLE III—OTHER PROVISIONS 

2 SEC. 301. SEVERABILITY. 

3 If any provision of this Act, any amendment made 

4 by this Act, or the application thereof to any person or 

5 circumstances is held invalid, the validity of the remainder 

6 of the Act, any such amendments, and of the application 

7 of such provisions to other persons and circumstances 

8 shall not be affected thereby. 

9 SEC. 302. EFFECTIVE DATE; REPEAL; TRANSITION PROCE10 DURES. 

11 (a) IN GENERAL.—Except as provided in subsection 

12 (c), the amendments made by this Act shall take effect 

13 on the date of the enactment of this Act. 

14 (b) REPEAL.— 

15 (1) IN GENERAL.—Except as provided in sub16 section (c), sections 105A, 105B, and 105C of the 

17 Foreign Intelligence Surveillance Act of 1978 (50 

18 U.S.C. 1805a, 1805b, and 1805c) are repealed. 

19 (2) TABLE OF CONTENTS.—The table of con20 tents in the first section of the Foreign Intelligence 

21 Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) 

22 is amended by striking the items relating to sections 

23 105A, 105B, and 105C. 

24 (c) TRANSITIONS PROCEDURES.— 


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1 (1) PROTECTION FROM LIABILITY.—Notwith2 standing subsection (b)(1), subsection (l) of section 

3 105B of the Foreign Intelligence Surveillance Act of 

4 1978 shall remain in effect with respect to any di5 rectives issued pursuant to such section 105B for in6 formation, facilities, or assistance provided during 

7 the period such directive was or is in effect. 

8 (2) ORDERS IN EFFECT.— 

9 (A) ORDERS IN EFFECT ON DATE OF EN10 ACTMENT.—Notwithstanding any other provi11 sion of this Act or of the Foreign Intelligence 

12 Surveillance Act of 1978— 

13 (i) any order in effect on the date of 

14 enactment of this Act issued pursuant to 

15 the Foreign Intelligence Surveillance Act of 

16 1978 or section 6(b) of the Protect Amer17 ica Act of 2007 (Public Law 110–55; 121 

18 Stat. 556) shall remain in effect until the 

19 date of expiration of such order; and 

20 (ii) at the request of the applicant, 

21 the court established under section 103(a) 

22 of the Foreign Intelligence Surveillance Act 

23 of 1978 (50 U.S.C. 1803(a)) shall reau24 thorize such order if the facts and cir25 cumstances continue to justify issuance of 


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1 such order under the provisions of such 

2 Act, as in effect on the day before the date 

3 of the enactment of the Protect America 

4 Act of 2007, except as amended by sec5 tions 102, 103, 104, 105, 106, 107, 108, 

6 109, and 110 of this Act. 

7 (B) ORDERS IN EFFECT ON DECEMBER 31, 

8 2013.—Any order issued under title VII of the 

9 Foreign Intelligence Surveillance Act of 1978, 

10 as amended by section 101 of this Act, in effect 

11 on December 31, 2013, shall continue in effect 

12 until the date of the expiration of such order. 

13 Any such order shall be governed by the appli14 cable provisions of the Foreign Intelligence Sur15 veillance Act of 1978, as so amended. 

16 (3) AUTHORIZATIONS AND DIRECTIVES IN EF17 FECT.— 

18 (A) AUTHORIZATIONS AND DIRECTIVES IN

19 EFFECT ON DATE OF ENACTMENT.—Notwith20 standing any other provision of this Act or of 

21 the Foreign Intelligence Surveillance Act of 

22 1978, any authorization or directive in effect on 

23 the date of the enactment of this Act issued 

24 pursuant to the Protect America Act of 2007, 

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1 main in effect until the date of expiration of 

2 such authorization or directive. Any such au3 thorization or directive shall be governed by the 

4 applicable provisions of the Protect America Act 

5 of 2007 (121 Stat. 552), and the amendment 

6 made by that Act, and, except as provided in 

7 paragraph (4) of this subsection, any acquisi8 tion pursuant to such authorization or directive 

9 shall be deemed not to constitute electronic sur10 veillance (as that term is defined in section 

11 101(f) of the Foreign Intelligence Surveillance 

12 Act of 1978 (50 U.S.C. 1801(f)), as construed 

13 in accordance with section 105A of the Foreign 

14 Intelligence Surveillance Act of 1978 (50 

15 U.S.C. 1805a)). 

16 (B) AUTHORIZATIONS AND DIRECTIVES IN

17 EFFECT ON DECEMBER 31, 2013.—Any author18 ization or directive issued under title VII of the 

19 Foreign Intelligence Surveillance Act of 1978, 

20 as amended by section 101 of this Act, in effect 

21 on December 31, 2013, shall continue in effect 

22 until the date of the expiration of such author23 ization or directive. Any such authorization or 

24 directive shall be governed by the applicable 

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1 lance Act of 1978, as so amended, and, except 

2 as provided in section 707 of the Foreign Intel3 ligence Surveillance Act of 1978, as so amend4 ed, any acquisition pursuant to such authoriza5 tion or directive shall be deemed not to con6 stitute electronic surveillance (as that term is 

7 defined in section 101(f) of the Foreign Intel8 ligence Surveillance Act of 1978, to the extent 

9 that such section 101(f) is limited by section 

10 701 of the Foreign Intelligence Surveillance Act 

11 of 1978, as so amended). 

12 (4) USE OF INFORMATION ACQUIRED UNDER

13 PROTECT AMERICA ACT.—Information acquired from 

14 an acquisition conducted under the Protect America 

15 Act of 2007, and the amendments made by that Act, 

16 shall be deemed to be information acquired from an 

17 electronic surveillance pursuant to title I of the For18 eign Intelligence Surveillance Act of 1978 (50 

19 U.S.C. 1801 et seq.) for purposes of section 106 of 

20 that Act (50 U.S.C. 1806), except for purposes of 

21 subsection (j) of such section. 

22 (5) NEW ORDERS.—Notwithstanding any other 

23 provision of this Act or of the Foreign Intelligence 

24 Surveillance Act of 1978— 


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1 (A) the government may file an application 

2 for an order under the Foreign Intelligence 

3 Surveillance Act of 1978, as in effect on the 

4 day before the date of the enactment of the 

5 Protect America Act of 2007, except as amend6 ed by sections 102, 103, 104, 105, 106, 107, 

7 108, 109, and 110 of this Act; and 

8 (B) the court established under section 

9 103(a) of the Foreign Intelligence Surveillance 

10 Act of 1978 shall enter an order granting such 

11 an application if the application meets the re12 quirements of such Act, as in effect on the day 

13 before the date of the enactment of the Protect 

14 America Act of 2007, except as amended by 

15 sections 102, 103, 104, 105, 106, 107, 108, 

16 109, and 110 of this Act. 

17 (6) EXTANT AUTHORIZATIONS.—At the request 

18 of the applicant, the court established under section 

19 103(a) of the Foreign Intelligence Surveillance Act 

20 of 1978 shall extinguish any extant authorization to 

21 conduct electronic surveillance or physical search en22 tered pursuant to such Act. 

23 (7) APPLICABLE PROVISIONS.—Any surveillance 

24 conducted pursuant to an order entered pursuant to 

25 this subsection shall be subject to the provisions of 


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1 the Foreign Intelligence Surveillance Act of 1978, as 

2 in effect on the day before the date of the enactment 

3 of the Protect America Act of 2007, except as 

4 amended by sections 102, 103, 104, 105, 106, 107, 

5 108, 109, and 110 of this Act. 

6 (8) TRANSITION PROCEDURES CONCERNING

7 THE TARGETING OF UNITED STATES PERSONS OVER8 SEAS.—Any authorization in effect on the date of 

9 enactment of this Act under section 2.5 of Executive 

10 Order 12333 to intentionally target a United States 

11 person reasonably believed to be located outside the 

12 United States shall remain in effect, and shall con13 stitute a sufficient basis for conducting such an ac14 quisition targeting a United States person located 

15 outside the United States until the earlier of— 

16 (A) the date that authorization expires; or 

17 (B) the date that is 90 days after the date 

18 of the enactment of this Act. 

Æ 


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