II 

Calendar No. 324 

110TH CONGRESS 

1ST SESSION S. 1927 

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. 

IN THE SENATE OF THE UNITED STATES 

AUGUST 1, 2007 

Mr. MCCONNELL (for himself and Mr. BOND) introduced the following bill; 

which was read the first time 

AUGUST 2, 2007 

Read the second time and placed on the calendar 

A BILL 

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. 

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. 

4 This Act may be cited as the ‘‘Protect America Act 

5 of 2007’’. 


cnoel on PRODPC75 with BILLS
2 

•S 1927 PCS

1 SEC. 2. ADDITIONAL PROCEDURE FOR AUTHORIZING CER2 TAIN ACQUISITIONS OF FOREIGN INTEL3 LIGENCE INFORMATION. 

4 The Foreign Intelligence Surveillance Act of 1978 

5 (50 U.S.C. 1801 et seq.) is amended by inserting after 

6 section 105 the following: 

7 ‘‘CLARIFICATION OF ELECTRONIC SURVEILLANCE OF

8 PERSONS OUTSIDE THE UNITED STATES

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

10 surveillance under section 101(f) shall be construed to en11 compass surveillance directed at a person reasonably be12 lieved to be located outside of the United States. 

13 ‘‘ADDITIONAL PROCEDURE FOR AUTHORIZING CERTAIN

14 ACQUISITIONS CONCERNING PERSONS LOCATED OUT15 SIDE THE UNITED STATES

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

17 Director of National Intelligence and the Attorney Gen18 eral, may for periods of up to one year authorize the acqui19 sition of foreign intelligence information concerning per20 sons reasonably believed to be outside the United States 

21 if the Director of National Intelligence and the Attorney 

22 General determine, based on the information provided to 

23 them, that— 

24 ‘‘(1) there are reasonable procedures in place 

25 for determining that the acquisition of foreign intel26 ligence information under this section concerns perVerDate Aug 31 2005 05:02 Aug 03, 2007 Jkt 059200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1927.PCS S1927

cnoel on PRODPC75 with BILLS
3 

•S 1927 PCS

1 sons reasonably believed to be located outside the 

2 United States, and such procedures will be subject 

3 to review of the Court pursuant to section 105C of 

4 this Act; 

5 ‘‘(2) the acquisition does not constitute elec6 tronic surveillance; 

7 ‘‘(3) the acquisition involves obtaining the for8 eign intelligence information from or with the assist9 ance of a communications service provider, custo10 dian, or other person (including any officer, em11 ployee, agent, or other specified person of such serv12 ice provider, custodian, or other person) who has ac13 cess to communications, either as they are trans14 mitted or while they are stored, or equipment that 

15 is being or may be used to transmit or store such 

16 communications; 

17 ‘‘(4) a significant purpose of the acquisition is 

18 to obtain foreign intelligence information; and 

19 ‘‘(5) the minimization procedures to be used 

20 with respect to such acquisition activity meet the 

21 definition of minimization procedures under section 

22 101(h). 

23 ‘‘This determination shall be in the form of a written 

24 certification, under oath, supported as appropriate by affi25 davit of appropriate officials in the national security field 


cnoel on PRODPC75 with BILLS
4 

•S 1927 PCS

1 occupying positions appointed by the President, by and 

2 with the consent of the Senate, or the Head of any Agency 

3 of the Intelligence Community, unless immediate action by 

4 the Government is required and time does not permit the 

5 preparation of a certification. In such a case, the deter6 mination of the Director of National Intelligence and the 

7 Attorney General shall be reduced to a certification as 

8 soon as possible but in no event more than 72 hours after 

9 the determination is made. 

10 ‘‘(b) A certification under subsection (a) is not re11 quired to identify the specific facilities, places, premises, 

12 or property at which the acquisition of foreign intelligence 

13 information will be directed. 

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

15 practicable under seal to the court established under sec16 tion 103(a) a copy of a certification made under sub17 section (a). Such certification shall be maintained under 

18 security measures established by the Chief Justice of the 

19 United States and the Attorney General, in consultation 

20 with the Director of National Intelligence, and shall re21 main sealed unless the certification is necessary to deter22 mine the legality of the acquisition under section 105B. 

23 ‘‘(d) An acquisition under this section may be con24 ducted only in accordance with the certification of the Di25 rector of National Intelligence and the Attorney General, 


cnoel on PRODPC75 with BILLS
5 

•S 1927 PCS

1 or their oral instructions if time does not permit the prep2 aration of a certification, and the minimization procedures 

3 adopted by the Attorney General. The Director of Na4 tional Intelligence and the Attorney General shall assess 

5 compliance with such procedures and shall report such as6 sessments to the Permanent Select Committee on Intel7 ligence of the House of Representatives and the Select 

8 Committee on Intelligence of the Senate under section 

9 108(a). 

10 ‘‘(e) With respect to an authorization of an acquisi11 tion under section 105B, the Director of National Intel12 ligence and Attorney General may direct a person to— 

13 ‘‘(1) immediately provide the Government with 

14 all information, facilities, and assistance necessary 

15 to accomplish the acquisition in such a manner as 

16 will protect the secrecy of the acquisition and 

17 produce a minimum of interference with the services 

18 that such person is providing to the target; and 

19 ‘‘(2) maintain under security procedures ap20 proved by the Attorney General and the Director of 

21 National Intelligence any records concerning the ac22 quisition or the aid furnished that such person wish23 es to maintain. 


cnoel on PRODPC75 with BILLS
6 

•S 1927 PCS

1 ‘‘(f) The Government shall compensate, at the pre2 vailing rate, a person for providing information, facilities, 

3 or assistance pursuant to subsection (e). 

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

5 issued pursuant to subsection (e), the Attorney General 

6 may invoke the aid of the court established under section 

7 103(a) to compel compliance with the directive. The court 

8 shall issue an order requiring the person to comply with 

9 the directive if it finds that the directive was issued in 

10 accordance with subsection (e) and is otherwise lawful. 

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

12 by the court as contempt of court. Any process under this 

13 section may be served in any judicial district in which the 

14 person may be found. 

15 ‘‘(h)(1)(A) A person receiving a directive issued pur16 suant to subsection (e) may challenge the legality of that 

17 directive by filing a petition with the pool established 

18 under section 103(e)(1). 

19 ‘‘(B) The presiding judge designated pursuant to sec20 tion 103(b) shall assign a petition filed under subpara21 graph (A) to one of the judges serving in the pool estab22 lished by section 103(e)(1). Not later than 48 hours after 

23 the assignment of such petition, the assigned judge shall 

24 conduct an initial review of the directive. If the assigned 

25 judge determines that the petition is frivolous, the asVerDate Aug 31 2005 05:02 Aug 03, 2007 Jkt 059200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1927.PCS S1927

cnoel on PRODPC75 with BILLS
7 

•S 1927 PCS

1 signed judge shall immediately deny the petition and af2 firm the directive or any part of the directive that is the 

3 subject of the petition. If the assigned judge determines 

4 the petition is not frivolous, the assigned judge shall, with5 in 72 hours, consider the petition in accordance with the 

6 procedures established under section 103(e)(2) and pro7 vide a written statement for the record of the reasons for 

8 any determination under this subsection. 

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

10 aside a directive may grant such petition only if the judge 

11 finds that such directive does not meet the requirements 

12 of this section or is otherwise unlawful. If the judge does 

13 not modify or set aside the directive, the judge shall imme14 diately affirm such directive, and order the recipient to 

15 comply with such directive. 

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

17 under this subsection shall remain in full effect. 

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

19 reviewed pursuant to subsection (h) may file a petition 

20 with the Court of Review established under section 103(b) 

21 for review of the decision issued pursuant to subsection 

22 (h) not later than 7 days after the issuance of such deci23 sion. Such court of review shall have jurisdiction to con24 sider such petitions and shall provide for the record a writ25 ten statement of the reasons for its decision. On petition 


cnoel on PRODPC75 with BILLS
8 

•S 1927 PCS

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

2 receiving such directive, the record shall be transmitted 

3 under seal to the Supreme Court, which shall have juris4 diction to review such decision. 

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

6 concluded as expeditiously as possible. The record of pro7 ceedings, including petitions filed, orders granted, and 

8 statements of reasons for decision, shall be maintained 

9 under security measures established by the Chief Justice 

10 of the United States, in consultation with the Attorney 

11 General and the Director of National Intelligence. 

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

13 under seal. In any proceedings under this section, the 

14 court shall, upon request of the Government, review ex 

15 parte and in camera any Government submission, or por16 tions of a submission, which may include classified infor17 mation. 

18 ‘‘(l) Notwithstanding any other law, no cause of ac19 tion shall lie in any court against any person for providing 

20 any information, facilities, or assistance in accordance 

21 with a directive under this section. 

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

23 section shall be retained for a period of not less than 10 

24 years from the date on which such directive or such order 

25 is made.’’. 


cnoel on PRODPC75 with BILLS
9 

•S 1927 PCS

1 SEC. 3. SUBMISSION TO COURT REVIEW AND ASSESSMENT 

2 OF PROCEDURES. 

3 The Foreign Intelligence Surveillance Act of 1978 

4 (50 U.S.C. 1801 et seq.) is amended by inserting after 

5 section 105B the following: 

6 ‘‘SUBMISSION TO COURT REVIEW OF PROCEDURES

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

8 effective date of this Act, the Attorney General shall sub9 mit to the Court established under section 103(a), the pro10 cedures by which the Government determines that acquisi11 tions conducted pursuant to section 105B do not con12 stitute electronic surveillance. The procedures submitted 

13 pursuant to this section shall be updated and submitted 

14 to the Court on an annual basis. 

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

16 of this Act, the court established under section 103(a) 

17 shall assess the Government’s determination under section 

18 105B(a)(1) that those procedures are reasonably designed 

19 to ensure that acquisitions conducted pursuant to section 

20 105B do not constitute electronic surveillance. The court’s 

21 review shall be limited to whether the Government’s deter22 mination is clearly erroneous. 

23 ‘‘(c) If the court concludes that the determination is 

24 not clearly erroneous, it shall enter an order approving 

25 the continued use of such procedures. If the court con26 cludes that the determination is clearly erroneous, it shall 


cnoel on PRODPC75 with BILLS
10 

•S 1927 PCS

1 issue an order directing the Government to submit new 

2 procedures within 30 days or cease any acquisitions under 

3 section 105B that are implicated by the court’s order. 

4 ‘‘(d) The Government may appeal any order issued 

5 under subsection (c) to the court established under section 

6 103(b). If such court determines that the order was prop7 erly entered, the court shall immediately provide for the 

8 record a written statement of each reason for its decision, 

9 and, on petition of the United States for a writ of certio10 rari, the record shall be transmitted under seal to the Su11 preme Court of the United States, which shall have juris12 diction to review such decision. Any acquisitions affected 

13 by the order issued under subsection (c) of this section 

14 may continue during the pendency of any appeal, the pe15 riod during which a petition for writ of certiorari may be 

16 pending, and any review by the Supreme Court of the 

17 United States.’’. 

18 SEC. 4. REPORTING TO CONGRESS. 

19 On a semi-annual basis the Attorney General shall 

20 inform the Select Committee on Intelligence of the Senate, 

21 the Permanent Select Committee on Intelligence of the 

22 House of Representatives, the Committee on the Judiciary 

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

24 House of Representatives, concerning acquisitions under 


cnoel on PRODPC75 with BILLS
11 

•S 1927 PCS

1 this section during the previous 6-month period. Each re2 port made under this section shall include— 

3 (1) a description of any incidents of non-compli4 ance with a directive issued by the Attorney General 

5 and the Director of National Intelligence under sec6 tion 105B, to include— 

7 (A) incidents of non-compliance by an ele8 ment of the Intelligence Community with guide9 lines or procedures established for determining 

10 that the acquisition of foreign intelligence au11 thorized by the Attorney General and Director 

12 of National Intelligence concerns persons rea13 sonably to be outside the United States; and 

14 (B) incidents of noncompliance by a speci15 fied person to whom the Attorney General and 

16 Director of National Intelligence issue a direc17 tive under this section; and 

18 (2) the number of certifications and directives 

19 issued during the reporting period. 

20 SEC. 5. TECHNICAL AMENDMENT AND CONFORMING 

21 AMENDMENTS. 

22 (a) IN GENERAL.—Section 103(e) of the Foreign In23 telligence Surveillance Act of 1978 (50 U.S.C. 1803(e)) 

24 is amended— 


cnoel on PRODPC75 with BILLS
12 

•S 1927 PCS

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

2 and inserting ‘‘105B(h) or 501(f)(1)’’; and 

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

4 and inserting ‘‘105B(h) or 501(f)(1)’’. 

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

6 the first section of the Foreign Intelligence Surveillance 

7 Act of 1978 (50 U.S.C. 1801 et seq.) is amended by in8 serting 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.’’. 

9 SEC. 6. EFFECTIVE DATE; TRANSITION PROCEDURES. 

10 (a) EFFECTIVE DATE.—Except as otherwise pro11 vided, the amendments made by this Act shall take effect 

12 immediately after the date of the enactment of this Act. 

13 (b) TRANSITION PROCEDURES.—Notwithstanding 

14 any other provision of this Act, any order in effect on the 

15 date of enactment of this Act issued pursuant to the For16 eign Intelligence Surveillance Act of 1978 (50 U.S.C. 

17 1801 et seq.) shall remain in effect until the date of expi18 ration of such order, and, at the request of the applicant, 

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

20 (50 U.S.C. 1803(a)) shall reauthorize such order as long 

21 as the facts and circumstances continue to justify issuance 

22 of such order under the provisions of the Foreign Intel23 ligence Surveillance Act of 1978, as in effect on the day 


cnoel on PRODPC75 with BILLS
13 

•S 1927 PCS

1 before the applicable effective date of this Act. The Gov2 ernment also may file new applications, and the court es3 tablished under section 103(a) of the Foreign Intelligence 

4 Surveillance Act of 1978 (50 U.S.C. 1803(a)) shall enter 

5 orders granting such applications pursuant to such Act, 

6 as long as the application meets the requirements set forth 

7 under the provisions of such Act as in effect on the day 

8 before the effective date of this Act. At the request of the 

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

10 the Foreign Intelligence Surveillance Act of 1978 (50 

11 U.S.C. 1803(a)), shall extinguish any extant authorization 

12 to conduct electronic surveillance or physical search en13 tered pursuant to such Act. Any surveillance conducted 

14 pursuant to an order entered under this subsection shall 

15 be subject to the provisions of the Foreign Intelligence 

16 Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), as in 

17 effect on the day before the effective date of this Act. 


cnoel on PRODPC75 with BILLS
Calendar No. 324 

110TH CONGRESS 

1ST SESSION S. 1927 

A BILL 

To amend the Foreign Intelligence Surveillance Act 

ligence information and for other purposes. thorizing certain acquisitions of foreign intelof 1978 to provide additional procedures for auAUGUST 2, 2007 

Read the second time and placed on the calendar 


cnoel on PRODPC75 with BILLS