110TH CONGRESS 

1ST SESSION S. 1927

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.

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

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

3 of 2007’’. 

4 SEC. 2. ADDITIONAL PROCEDURE FOR AUTHORIZING CER5 TAIN ACQUISITIONS OF FOREIGN INTEL6 LIGENCE INFORMATION. 

7 The Foreign Intelligence Surveillance Act of 1978 

8 (50 U.S.C. 1801 et seq.) is amended by inserting after 

9 section 105 the following: 

10 ‘‘CLARIFICATION OF ELECTRONIC SURVEILLANCE OF

11 PERSONS OUTSIDE THE UNITED STATES

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

13 surveillance under section 101(f) shall be construed to en14 compass surveillance directed at a person reasonably be15 lieved to be located outside of the United States. 

16 ‘‘ADDITIONAL PROCEDURE FOR AUTHORIZING CERTAIN

17 ACQUISITIONS CONCERNING PERSONS LOCATED OUT18 SIDE THE UNITED STATES

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

20 Director of National Intelligence and the Attorney Gen21 eral, may for periods of up to one year authorize the acqui22 sition of foreign intelligence information concerning per23 sons reasonably believed to be outside the United States 

24 if the Director of National Intelligence and the Attorney 

25 General determine, based on the information provided to 

26 them, that—
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1 ‘‘(1) there are reasonable procedures in place 

2 for determining that the acquisition of foreign intel3 ligence information under this section concerns per4 sons reasonably believed to be located outside the 

5 United States, and such procedures will be subject 

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

7 this Act; 

8 ‘‘(2) the acquisition does not constitute elec9 tronic surveillance; 

10 ‘‘(3) the acquisition involves obtaining the for11 eign intelligence information from or with the assist12 ance of a communications service provider, custo13 dian, or other person (including any officer, em14 ployee, agent, or other specified person of such serv15 ice provider, custodian, or other person) who has ac16 cess to communications, either as they are trans17 mitted or while they are stored, or equipment that 

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

19 communications; 

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

21 to obtain foreign intelligence information; and 

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

23 with respect to such acquisition activity meet the 

24 definition of minimization procedures under section 

25 101(h). 
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1 ‘‘This determination shall be in the form of a written 

2 certification, under oath, supported as appropriate by affi3 davit of appropriate officials in the national security field 

4 occupying positions appointed by the President, by and 

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

6 of the Intelligence Community, unless immediate action by 

7 the Government is required and time does not permit the 

8 preparation of a certification. In such a case, the deter9 mination of the Director of National Intelligence and the 

10 Attorney General shall be reduced to a certification as 

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

12 the determination is made. 

13 ‘‘(b) A certification under subsection (a) is not re14 quired to identify the specific facilities, places, premises, 

15 or property at which the acquisition of foreign intelligence 

16 information will be directed. 

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

18 practicable under seal to the court established under sec19 tion 103(a) a copy of a certification made under sub20 section (a). Such certification shall be maintained under 

21 security measures established by the Chief Justice of the 

22 United States and the Attorney General, in consultation 

23 with the Director of National Intelligence, and shall re24 main sealed unless the certification is necessary to deter25 mine the legality of the acquisition under section 105B. 
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1 ‘‘(d) An acquisition under this section may be con2 ducted only in accordance with the certification of the Di3 rector of National Intelligence and the Attorney General, 

4 or their oral instructions if time does not permit the prep5 aration of a certification, and the minimization procedures 

6 adopted by the Attorney General. The Director of Na7 tional Intelligence and the Attorney General shall assess 

8 compliance with such procedures and shall report such as9 sessments to the Permanent Select Committee on Intel10 ligence of the House of Representatives and the Select 

11 Committee on Intelligence of the Senate under section 

12 108(a). 

13 ‘‘(e) With respect to an authorization of an acquisi14 tion under section 105B, the Director of National Intel15 ligence and Attorney General may direct a person to—

16 ‘‘(1) immediately provide the Government with 

17 all information, facilities, and assistance necessary 

18 to accomplish the acquisition in such a manner as 

19 will protect the secrecy of the acquisition and 

20 produce a minimum of interference with the services 

21 that such person is providing to the target; and 

22 ‘‘(2) maintain under security procedures ap23 proved by the Attorney General and the Director of 

24 National Intelligence any records concerning the ac-
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1 quisition or the aid furnished that such person wish2 es to maintain. 

3 ‘‘(f) The Government shall compensate, at the pre4 vailing rate, a person for providing information, facilities, 

5 or assistance pursuant to subsection (e). 

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

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

8 may invoke the aid of the court established under section 

9 103(a) to compel compliance with the directive. The court 

10 shall issue an order requiring the person to comply with 

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

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

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

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

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

16 person may be found. 

17 ‘‘(h)(1)(A) A person receiving a directive issued pur18 suant to subsection (e) may challenge the legality of that 

19 directive by filing a petition with the pool established 

20 under section 103(e)(1). 

21 ‘‘(B) The presiding judge designated pursuant to sec22 tion 103(b) shall assign a petition filed under subpara23 graph (A) to one of the judges serving in the pool estab24 lished by section 103(e)(1). Not later than 48 hours after 

25 the assignment of such petition, the assigned judge shall 
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1 conduct an initial review of the directive. If the assigned 

2 judge determines that the petition is frivolous, the as3 signed judge shall immediately deny the petition and af4 firm the directive or any part of the directive that is the 

5 subject of the petition. If the assigned judge determines 

6 the petition is not frivolous, the assigned judge shall, with7 in 72 hours, consider the petition in accordance with the 

8 procedures established under section 103(e)(2) and pro9 vide a written statement for the record of the reasons for 

10 any determination under this subsection. 

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

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

13 finds that such directive does not meet the requirements 

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

15 not modify or set aside the directive, the judge shall imme16 diately affirm such directive, and order the recipient to 

17 comply with such directive. 

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

19 under this subsection shall remain in full effect. 

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

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

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

23 for review of the decision issued pursuant to subsection 

24 (h) not later than 7 days after the issuance of such deci25 sion. Such court of review shall have jurisdiction to con-
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1 sider such petitions and shall provide for the record a writ2 ten statement of the reasons for its decision. On petition 

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

4 receiving such directive, the record shall be transmitted 

5 under seal to the Supreme Court, which shall have juris6 diction to review such decision. 

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

8 concluded as expeditiously as possible. The record of pro9 ceedings, including petitions filed, orders granted, and 

10 statements of reasons for decision, shall be maintained 

11 under security measures established by the Chief Justice 

12 of the United States, in consultation with the Attorney 

13 General and the Director of National Intelligence. 

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

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

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

17 parte and in camera any Government submission, or por18 tions of a submission, which may include classified infor19 mation. 

20 ‘‘(l) Notwithstanding any other law, no cause of ac21 tion shall lie in any court against any person for providing 

22 any information, facilities, or assistance in accordance 

23 with a directive under this section. 

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

25 section shall be retained for a period of not less than 10 
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1 years from the date on which such directive or such order 

2 is made.’’. 

3 SEC. 3. SUBMISSION TO COURT REVIEW AND ASSESSMENT 

4 OF PROCEDURES. 

5 The Foreign Intelligence Surveillance Act of 1978 

6 (50 U.S.C. 1801 et seq.) is amended by inserting after 

7 section 105B the following: 

8 ‘‘SUBMISSION TO COURT REVIEW OF PROCEDURES

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

10 effective date of this Act, the Attorney General shall sub11 mit to the Court established under section 103(a), the pro12 cedures by which the Government determines that acquisi13 tions conducted pursuant to section 105B do not con14 stitute electronic surveillance. The procedures submitted 

15 pursuant to this section shall be updated and submitted 

16 to the Court on an annual basis. 

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

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

19 shall assess the Government’s determination under section 

20 105B(a)(1) that those procedures are reasonably designed 

21 to ensure that acquisitions conducted pursuant to section 

22 105B do not constitute electronic surveillance. The court’s 

23 review shall be limited to whether the Government’s deter24 mination is clearly erroneous. 

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

26 not clearly erroneous, it shall enter an order approving 
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1 the continued use of such procedures. If the court con2 cludes that the determination is clearly erroneous, it shall 

3 issue an order directing the Government to submit new 

4 procedures within 30 days or cease any acquisitions under 

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

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

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

8 103(b). If such court determines that the order was prop9 erly entered, the court shall immediately provide for the 

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

11 and, on petition of the United States for a writ of certio12 rari, the record shall be transmitted under seal to the Su13 preme Court of the United States, which shall have juris14 diction to review such decision. Any acquisitions affected 

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

16 may continue during the pendency of any appeal, the pe17 riod during which a petition for writ of certiorari may be 

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

19 United States.’’. 

20 SEC. 4. REPORTING TO CONGRESS. 

21 On a semi-annual basis the Attorney General shall 

22 inform the Select Committee on Intelligence of the Senate, 

23 the Permanent Select Committee on Intelligence of the 

24 House of Representatives, the Committee on the Judiciary 

25 of the Senate, and the Committee on the Judiciary of the 
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1 House of Representatives, concerning acquisitions under 

2 this section during the previous 6-month period. Each re3 port made under this section shall include—

4 (1) a description of any incidents of non-compli5 ance with a directive issued by the Attorney General 

6 and the Director of National Intelligence under sec7 tion 105B, to include—

8 (A) incidents of non-compliance by an ele9 ment of the Intelligence Community with guide10 lines or procedures established for determining 

11 that the acquisition of foreign intelligence au12 thorized by the Attorney General and Director 

13 of National Intelligence concerns persons rea14 sonably to be outside the United States; and 

15 (B) incidents of noncompliance by a speci16 fied person to whom the Attorney General and 

17 Director of National Intelligence issue a direc18 tive under this section; and 

19 (2) the number of certifications and directives 

20 issued during the reporting period. 

21 SEC. 5. TECHNICAL AMENDMENT AND CONFORMING 

22 AMENDMENTS. 

23 (a) IN GENERAL.—Section 103(e) of the Foreign In24 telligence Surveillance Act of 1978 (50 U.S.C. 1803(e)) 

25 is amended—
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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 (50 

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

21 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 
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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. 

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

19 sections 2, 3, 4, and 5 of this Act, and the amendments 

20 made by this Act, shall cease to have effect 180 days after 

21 the date of the enactment of this Act. 

22 (d) AUTHORIZATIONS IN EFFECT.—Authorizations 

23 for the acquisition of foreign intelligence information pur24 suant to the amendments made by this Act, and directives 

25 issued pursuant to such authorizations, shall remain in ef-
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1 fect until their expiration. Such acquisitions shall be gov2 erned by the applicable provisions of such amendments 

3 and shall not be deemed to constitute electronic surveil4 lance as that term is defined in section 101(f) of the For5 eign Intelligence Surveillance Act of 1978 (50 U.S.C. 

6 1801(f)). 

Passed the Senate August 3, 2007. 

Attest:

Secretary. 

110TH CONGRESS 

1ST SESSION S. 1927

AN ACT

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 au-