S. 1927

One Hundred Tenth Congress

of the

United States of America 

AT THE FIRST SESSION 

Begun and held at the City of Washington on Thursday, 

the fourth day of January, two thousand and seven 

An Act 

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

procedures for authorizing certain acquisitions of foreign intelligence information 

and for other purposes.

Be it enacted by the Senate and House of Representatives of 

the United States of America in Congress assembled, 

SECTION 1. SHORT TITLE. 

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

SEC. 2. ADDITIONAL PROCEDURE FOR AUTHORIZING CERTAIN 

ACQUISITIONS OF FOREIGN INTELLIGENCE INFORMATION. 

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

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

‘‘CLARIFICATION OF ELECTRONIC SURVEILLANCE OF PERSONS OUTSIDE

THE UNITED STATES

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

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

directed at a person reasonably believed to be located outside of 

the United States. 

‘‘ADDITIONAL PROCEDURE FOR AUTHORIZING CERTAIN ACQUISITIONS

CONCERNING PERSONS LOCATED OUTSIDE THE UNITED STATES

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

of National Intelligence and the Attorney General, may for periods 

of up to one year authorize the acquisition of foreign intelligence 

information concerning persons reasonably believed to be outside 

the United States if the Director of National Intelligence and the 

Attorney General determine, based on the information provided 

to them, that—

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

under this section concerns persons reasonably believed to be 

located outside the United States, and such procedures will 

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

of this Act; 

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

‘‘(3) the acquisition involves obtaining the foreign intelligence information from or with the assistance of a communications service provider, custodian, or other person (including 

any officer, employee, agent, or other specified person of such 

service provider, custodian, or other person) who has access 
S. 1927—2

to communications, either as they are transmitted or while 

they are stored, or equipment that is being or may be used 

to transmit or store such communications; ‘‘(4) a significant purpose of the acquisition is to obtain 

foreign intelligence information; and ‘‘(5) the minimization procedures to be used with respect 

to such acquisition activity meet the definition of minimization 

procedures under section 101(h). 

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

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

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

immediate action by the Government is required and time does 

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

determination of the Director of National Intelligence and the 

Attorney General shall be reduced to a certification as soon as 

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

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

the acquisition of foreign intelligence information will be directed. 

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

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

of a certification made under subsection (a). Such certification shall 

be maintained under security measures established by the Chief 

Justice of the United States and the Attorney General, in consultation with the Director of National Intelligence, and shall remain 

sealed unless the certification is necessary to determine the legality 

of the acquisition under section 105B. 

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

in accordance with the certification of the Director of National 

Intelligence and the Attorney General, or their oral instructions 

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

the minimization procedures adopted by the Attorney General. The 

Director of National Intelligence and the Attorney General shall 

assess compliance with such procedures and shall report such 

assessments to the Permanent Select Committee on Intelligence 

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

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

section 105B, the Director of National Intelligence and Attorney 

General may direct a person to—

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

acquisition in such a manner as will protect the secrecy of 

the acquisition and produce a minimum of interference with 

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

‘‘(2) maintain under security procedures approved by the 

Attorney General and the Director of National Intelligence 

any records concerning the acquisition or the aid furnished 

that such person wishes to maintain. 

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

a person for providing information, facilities, or assistance pursuant 

to subsection (e). 

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

pursuant to subsection (e), the Attorney General may invoke the 
S. 1927—3

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

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

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

Failure to obey an order of the court may be punished by the 

court as contempt of court. Any process under this section may 

be served in any judicial district in which the person may be 

found. 

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

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

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

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

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

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

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

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

If the assigned judge determines that the petition is frivolous, 

the assigned judge shall immediately deny the petition and affirm 

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

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

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

petition in accordance with the procedures established under section 

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

reasons for any determination under this subsection. 

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

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

directive does not meet the requirements of this section or is otherwise unlawful. If the judge does not modify or set aside the directive, 

the judge shall immediately affirm such directive, and order the 

recipient to comply with such directive. 

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

this subsection shall remain in full effect. 

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

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

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

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

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

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

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

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

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

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

as expeditiously as possible. The record of proceedings, including 

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

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

Attorney General and the Director of National Intelligence. 

‘‘(k) All petitions under this section shall be filed under seal. 

In any proceedings under this section, the court shall, upon request 

of the Government, review ex parte and in camera any Government 

submission, or portions of a submission, which may include classified information. 

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

lie in any court against any person for providing any information, 
S. 1927—4

facilities, or assistance in accordance with a directive under this 

section. ‘‘(m) A directive made or an order granted under this section 

shall be retained for a period of not less than 10 years from 

the date on which such directive or such order is made.’’. 

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

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

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

‘‘SUBMISSION TO COURT REVIEW OF PROCEDURES

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

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

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

Government determines that acquisitions conducted pursuant to 

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

submitted to the Court on an annual basis. 

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

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

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

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

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

erroneous, it shall enter an order approving the continued use 

of such procedures. If the court concludes that the determination 

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

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

court determines that the order was properly entered, the court 

shall immediately provide for the record a written statement of 

each reason for its decision, and, on petition of the United States 

for a writ of certiorari, the record shall be transmitted under seal 

to the Supreme Court of the United States, which shall have jurisdiction to review such decision. Any acquisitions affected by the 

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

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

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

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

SEC. 4. REPORTING TO CONGRESS. 

On a semi-annual basis the Attorney General shall inform 

the Select Committee on Intelligence of the Senate, the Permanent 

Select Committee on Intelligence of the House of Representatives, 

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

on the Judiciary of the House of Representatives, concerning 

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

Each report made under this section shall include—

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

a directive issued by the Attorney General and the Director 

of National Intelligence under section 105B, to include—
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(A) incidents of non-compliance by an element of the 

Intelligence Community with guidelines or procedures 

established for determining that the acquisition of foreign 

intelligence authorized by the Attorney General and 

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

(B) incidents of noncompliance by a specified person 

to whom the Attorney General and Director of National 

Intelligence issue a directive under this section; and 

(2) the number of certifications and directives issued during 

the reporting period. 

SEC. 5. TECHNICAL AMENDMENT AND CONFORMING AMENDMENTS. 

(a) IN GENERAL.—Section 103(e) of the Foreign Intelligence 

Surveillance Act of 1978 (50 U.S.C. 1803(e)) is amended— (1) in paragraph (1), by striking ‘‘501(f)(1)’’ and inserting ‘‘105B(h) or 501(f)(1)’’; and 

(2) in paragraph (2), by striking ‘‘501(f)(1)’’ and inserting ‘‘105B(h) or 501(f)(1)’’. (b) TABLE OF CONTENTS.—The table of contents in the first 

section of the Foreign Intelligence Surveillance Act of 1978 (50 

U.S.C. 1801 et seq.) is amended by inserting after the item relating 

to section 105 the following:

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

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

located outside the United States. 

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

SEC. 6. EFFECTIVE DATE; TRANSITION PROCEDURES. 

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

date of the enactment of this Act. 

(b) TRANSITION PROCEDURES.—Notwithstanding any other 

provision of this Act, any order in effect on the date of enactment 

of this Act issued pursuant to the Foreign Intelligence Surveillance 

Act of 1978 (50 U.S.C. 1801 et seq.) shall remain in effect until 

the date of expiration of such order, and, at the request of the 

applicant, the court established under section 103(a) of such Act 

(50 U.S.C. 1803(a)) shall reauthorize such order as long as the 

facts and circumstances continue to justify issuance of such order 

under the provisions of the Foreign Intelligence Surveillance Act 

of 1978, as in effect on the day before the applicable effective 

date of this Act. The Government also may file new applications, 

and the court established under section 103(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a)) shall enter 

orders granting such applications pursuant to such Act, as long 

as the application meets the requirements set forth under the 

provisions of such Act as in effect on the day before the effective 

date of this Act. At the request of the applicant, the court established under section 103(a) of the Foreign Intelligence Surveillance 

Act of 1978 (50 U.S.C. 1803(a)), shall extinguish any extant 

authorization to conduct electronic surveillance or physical search 

entered pursuant to such Act. Any surveillance conducted pursuant 

to an order entered under this subsection shall be subject to the 

provisions of the Foreign Intelligence Surveillance Act of 1978 (50 

U.S.C. 1801 et seq.), as in effect on the day before the effective 

date of this Act. 
S. 1927—6

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

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

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

of this Act. 

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

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

shall be governed by the applicable provisions of such amendments 

and shall not be deemed to constitute electronic surveillance as 

that term is defined in section 101(f) of the Foreign Intelligence 

Surveillance Act of 1978 (50 U.S.C. 1801(f)).

Speaker of the House of Representatives.

Vice President of the United States and

President of the Senate.