No Easy Answers


Friday, August 03, 2007

Competing FISA Modifications: DNI (S.1927) v. DEM

Competing FISA modernization proposals.

H.R.3356 - House Democrats
S.2011 - Senate Democrats (Levin/Rockefeller)
S.1927 - DNI proposal presented by Senate Republicans
DNI - July 27 Letter from Mike McConnell

Source: http://gulcfac.typepad.com/georgetown_university_law/files/FISA2007.democratic.fix.pdf

Shorter source:
[Congressional Record: August 3, 2007 (House)]
[Page H9685-H9695]

The competing measure, the DNI proposal as expressed in S.1927, appears near the bottom of page S10619, and at pages S10871-72 of the Congressional Record.

DNI July 27 proposal: http://www.fas.org/irp/news/2007/07/dni072707.pdf

I believe S.1927 has been amended to include sunset of some provisions. I'll be surprised if there is sunset on the immunity from suit, payment for hardware, or other substantive aspects that are significant from a civil liberties point of view.

[Aug 5] The amendment sunsets nearly everything, except whatever orders are in place, remain in place. Purely speculating, if an order is to maintain a tap for an indefinite period, then sunsetting the law that admitted the order in the first place is a meaningless act.

[Aug 8] Added Admiral McConnell's propsoed statutory language as expressed in his July 27th letter to Congressional leadership.

[Aug 11] A few related statutory proposals: DNI April 2007 proposal, and see this summary of September 2006 action, as well as this very terse summary of Heather Wilson's H.R.5825.

[Aug 23] Added text of S.2011.



 IMPROVING FOREIGN INTELLIGENCE SURVEILLANCE TO DEFEND THE NATION AND
                      THE CONSTITUTION ACT OF 2007                   
       
  Mr. CONYERS. Madam Speaker, I move to suspend the rules and pass the
bill (H.R. 3356) to amend the Foreign Intelligence Surveillance Act of
1978 to establish a procedure for authorizing certain electronic  
surveillance.
  The Clerk read the title of the bill.
  The text of the bill is as follows:
     
                               H.R. 3356
       
       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 ``Improving Foreign
     Intelligence Surveillance to Defend the Nation and the
     Constitution Act of 2007''.
     
     SEC. 2. PURPOSE.
     
       The purpose of this Act is to facilitate the acquisition of
     foreign intelligence information by providing for the
     electronic surveillance of persons reasonably believed to be
     outside the United States pursuant to methodologies proposed
     by the Attorney General, reviewed by the Foreign Intelligence
     Surveillance Court, and applied by the Attorney General      
     without further court approval, unless otherwise required
     under the Foreign Intelligence Surveillance Act of 1978 (50
     U.S.C. 1801 et seq.).
     
     SEC. 3. ADDITIONAL PROCEDURE FOR AUTHORIZING CERTAIN
                   ELECTRONIC SURVEILLANCE.
     
       (a) In General.--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.  Notwithstanding any other provision of this  
     Act, a court order is not required for the acquisition of the
     contents of any communication between persons that are not   
     located within the United States for the purpose of         
     collecting foreign intelligence information, without respect
     to whether the communication passes through the United States
     or the surveillance device is located within the United
     States.

   ``ADDITIONAL PROCEDURE FOR AUTHORIZING CERTAIN ELECTRONIC SURVEILLANCE

       ``Sec. 105B.  (a) In General.--Notwithstanding any other
     provision of this title, the Attorney General, upon the   
     authorization of the President, may apply to a judge of the
     court established under section 103(a) for an ex parte order,
     or an extension of an order, authorizing electronic          
     surveillance for periods of not more than 1 year, for the
     purpose of acquiring foreign intelligence information, in
     accordance with this section.
       ``(b) Application.--       
       ``(1) Specific persons and places not required.--An
     application for an order, or extension of an order, submitted
     under subsection (a) shall not be required to identify--     
       ``(A) the persons, other than a foreign power, against whom
     electronic surveillance will be directed; or
       ``(B) the specific facilities, places, premises, or
     property at which the electronic surveillance will be
     directed.
       ``(2) Contents.--An application for an order, or extension
     of an order, submitted under subsection (a) shall include--  
       ``(A) a statement that the electronic surveillance is      
     directed at persons reasonably believed to be outside the
     United States;
       ``(B) the identity of the Federal officer seeking to
     conduct such electronic surveillance;
       ``(C) a description of--
       ``(i) the methods to be used by the Attorney General to
     determine, during the duration of the order, that there is a
     reasonable belief that the targets of the electronic        
     surveillance are persons outside the United States; and
       ``(ii) the procedures to audit the implementation of the   
     methods described in clause (i) to achieve the objective     
     described in that clause;
       ``(D) a description of the nature of the information
     sought, including the identity of any foreign power against  
     whom electronic surveillance will be directed; and
       ``(E) a statement of the means by which the electronic 
     surveillance will be effected and such other information   
     about the surveillance techniques to be used as may be     
     necessary to assess the proposed minimization procedures.
       ``(c) Application Approval; Order.--
       ``(1) Application approval.--A judge considering an
     application for an order, or extension of an order, submitted
     under subsection (a) shall approve such application if the   
     Attorney General certifies in writing under oath, and the   
     judge upon consideration of the application determines,  
     that--                                                 
       ``(A) the acquisition does not constitute electronic
     surveillance within the meaning of paragraph (1) or (3) of
     section 101(f);
       ``(B) the methods described by the Attorney General under
     subsection (b)(2)(B)(i) are reasonably designed to determine 
     whether the persons are outside the United States;
       ``(C) a significant purpose of the electronic surveillance 
     is to obtain foreign intelligence information;
       ``(D) the proposed minimization procedures meet the
     definition of minimization procedures under section 101(h).  
       ``(2) Order.--A judge approving an application pursuant to 
     paragraph (1) shall issue an order that--                   
       ``(A) authorizes electronic surveillance as requested, or
     as modified by the judge;                                                              
       ``(B) requires a communications service provider,
     custodian, or other person who has the lawful authority to
     access the information, facilities, or technical assistance
     necessary to accomplish the electronic surveillance, upon the
     request of the applicant, to furnish the applicant forthwith 
     with such information, facilities, or technical assistance in
     a manner that will protect the secrecy of the electronic     
     surveillance and produce a minimum of interference with the
     services that provider, custodian, or other person is
     providing the target of electronic surveillance;     
       ``(C) requires such communications service provider,
     custodian, or other person, upon the request of the   
     applicant, to maintain under security procedures approved by 
     the Attorney General and the Director of National
     Intelligence any records concerning the acquisition or the   
     aid furnished;
       ``(D) directs the Federal Government to compensate, at the
     prevailing rate, a person for providing information,        
     facilities, or assistance pursuant to such order; and
       ``(E) directs the applicant to follow the minimization
     procedures as proposed or as modified by the court.
       ``(3) Assessment of compliance with minimization
     procedures.--At or before the end of the period of time for
     which electronic surveillance is approved by an order or an
     extension under this section, the judge may assess compliance
     with the minimization procedures by reviewing the            
     circumstances under which information concerning United
     States persons was acquired, retained, or disseminated.  
       ``(d) Guidelines for Surveillance of United States
     Persons.--Not later than 15 days after the date of the      
     enactment of this section, the Attorney General shall  
     establish guidelines that are reasonably designed to ensure  
     that an application is filed under section 104, if otherwise 
     required by this Act, when the Attorney General seeks to    
     initiate electronic surveillance, or continue electronic
     surveillance that began under this section, of a United
     States person.
       ``(e) Submission of Orders, Guidelines, and Audits.--  
       ``(1) Orders.--Upon the entry of an order under subsection
     (c)(2), the Attorney General shall submit to the appropriate
     committees of Congress such order.
       ``(2) Guidelines.--Upon the establishment of the guidelines
     under subsection (d), the Attorney General shall submit to   
     the appropriate committees of Congress and the court
     established under section 103(a) such guidelines.
       ``(3) Audits.--Not later than 60 days after the date of the
     enactment of this section, and every 60 days thereafter until
     the expiration of all orders issued under this section, the  
     Inspector General of the Department of Justice shall complete
     an audit on the compliance with the guidelines established   
     under subsection (d) and shall submit to the appropriate  
     committees of Congress, the Attorney General, the Director of
     National Intelligence, and the court established under
     section 103(a)--
       ``(A) the results of such audit;
       ``(B) a list of any targets of electronic surveillance
     under this section determined to be in the United States; and
       ``(C) the number of persons in the United States whose     
     communications have been intercepted under this section.
       ``(f) Immediate Emergency Authorization.--                
       ``(1) In general.--Notwithstanding any other provision of
     this title, during the first 15 days following the date of 
     the enactment of this section, upon the authorization of the
     President, the Attorney General may authorize electronic
     surveillance without a court order under this title until the
     date that is 15 days after the date on which the Attorney    
     General authorizes such electronic surveillance if the
     Attorney General determines--
       ``(A) that an emergency situation exists with respect to
     the employment of electronic surveillance to obtain foreign
     intelligence information before an order authorizing such  
     surveillance can with due diligence be obtained; and
       ``(B) the electronic surveillance will be directed at
     persons reasonably believed to be outside the United States. 
       ``(2) Pending order.--                                    
       ``(A) Initial extension.--If at the end of the period in  
     which the Attorney General authorizes electronic surveillance
     under paragraph (1), the Attorney General has submitted an   
     application for an order under subsection (a) but the court
     referred to in section 103(a) has not approved or disapproved
     such application, such court may authorize the Attorney      
     General to extend the emergency authorization of electronic
     surveillance under paragraph (1) for not more than 15 days.
       ``(B) Subsequent extension.--If at the end of the extension
     of the emergency authorization of electronic surveillance    
     under subparagraph (A) the court referred to in section  
     103(a) has not approved or disapproved the application   
     referred to in subparagraph (A), such court may authorize the
     Attorney General to extend the emergency authorization of    
     electronic surveillance under paragraph (1) for not more than
     15 days.
       ``(3) Maximum length of authorization.--Notwithstanding    
     paragraphs (1) and (2), in no case shall electronic
     surveillance be authorized under this subsection for a total
     of more than 45 days without a court order under this title.
       ``(4) Minimization procedures.--The Attorney General shall
     ensure that any electronic surveillance conducted pursuant to
     paragraph (1) or (2) is in accordance with minimization 
     procedures that meet the definition of minimization
     procedures in section 101(h).
       ``(5) Information, facilities, and technical assistance.-- 
     Pursuant to an authorization of electronic surveillance under
     this subsection, the Attorney General may direct a           
     communications service provider, custodian, or other person
     who has the lawful authority to access the information,
     facilities, or technical assistance necessary to accomplish  
     such electronic surveillance to--
       ``(A) furnish the Attorney General forthwith with such
     information, facilities, or technical assistance in a manner 
     that will protect the secrecy of the electronic surveillance
     and produce a minimum of interference with the services that 
     provider, custodian, or other person is providing the target 
     of electronic surveillance; and                             
       ``(B) maintain under security procedures approved by the
     Attorney General and the Director of National Intelligence
     any records concerning the acquisition or the aid furnished. 
       ``(g) Prohibition on Liability for Providing Assistance.-- 
     Section 105(i), relating to protection from liability for the
     furnishing of information, facilities, or technical          
     assistance pursuant to a court order under this Act, shall
     apply to this section.
       ``(h) Effect of Section on Other Authorities.--The
     authority under this section is in addition to the authority
     to conduct electronic surveillance under sections 104 and   
     105.
       ``(i) Appropriate Committees of Congress Defined.--In this
     section, the term `appropriate committees of Congress'
     means--
       ``(1) the Select Committee on Intelligence and the
     Committee on the Judiciary of the Senate; and   
       ``(2) the Permanent Select Committee on Intelligence and
     the Committee on the Judiciary of the House of
     Representatives.''.
       (b) Technical and Conforming Amendment.--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:
     
``Sec. 105A. Clarification of electronic surveillance of persons  
              outside the United States.
``Sec. 105B. Additional procedure for authorizing certain electronic
              surveillance.''.
     
       (c) Sunset.--
       (1) In general.--Except as provided in paragraph (2),
     effective on the date that is 120 days after the date of the 
     enactment of this Act, sections 105A and 105B of the Foreign
     Intelligence Surveillance Act of 1978, as added by subsection
     (a), are hereby repealed.
       (2) Exception.--Any order under section 105B of the Foreign
     Intelligence Surveillance Act of 1978, as added by this Act, 
     in effect on such date that is 120 days after the date of the
     enactment of this Act, shall continue in effect until the    
     date of the expiration of such order.



   S 2011 PCS

                                 Calendar No. 332

                                  110th CONGRESS

                                   1st Session

                                     S. 2011

   Entitled the `Protect America Act of 2007'.

                        IN THE SENATE OF THE UNITED STATES

                                  August 3, 2007

   Mr. LEVIN (for himself and Mr. ROCKEFELLER) introduced the following bill;
   which was read twice, considered, read the third time, and failed of passage

                                  August 3, 2007

   Ordered to be placed on the calendar
     _______________________________________________________________________   

                                      A BILL

   Entitled the `Protect America Act of 2007'.

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

SECTION 1. PURPOSE.
                   
   To provide for a procedure before the FISA Court for an order, which may be
       amended as necessary at the request of the Government with the approval   
       of the Court, authorizing procedures, guidelines, means or methods that   
       will permit the collection of intelligence between foreign persons       
       located outside the United States, while bringing incidental contacts
       with United States persons at home or abroad into compliance with
       existing law and minimization procedures.                             

SEC. 2. ADDITIONAL PROCEDURE FOR AUTHORIZING CERTAIN ELECTRONIC SURVEILLANCE.
                                                                             
   (a) In General- 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 SURVEILLANCE OF PERSONS OUTSIDE THE UNITED STATES
                                                                   
   `Sec. 105A. Notwithstanding any other provision of this Act, a court order   
       is not required for the electronic surveillance of the contents of any   
       communication between persons that are not located within the United
       States for the purpose of collecting foreign intelligence information,     
       without respect to whether the communication passes through the United  
       States or the surveillance device is located within the United States.  

`ADDITIONAL PROCEDURE FOR COURT APPROVAL FOR AUTHORIZING CERTAIN ELECTRONIC
SURVEILLANCE

   `Sec. 105B. (a) In General- Notwithstanding any other provision of this
       title, the Attorney General, in consultation with Director of National
       Intelligence, upon the authorization of the President, may apply to a 
       judge of the court established under section 103(a) for an ex parte  
       order, or an extension of an order, authorizing electronic surveillance
       for a period of 1 year, in accordance with this section.               
                                 
   `(b) Application-
                                  
   `(1) CONTENTS- An application for an order, or extension of an order,
       submitted under subsection (a) shall include--                   
                                                     
   `(A) the identity of the Federal officer making the application;
                                                                   
   `(B) a written certification made under oath by the Director of National
       Intelligence and the Attorney General that--                        
                        
   `(i) there are reasonable procedures in place for determining that the
       electronic surveillance under this section is directed at persons 
       reasonably believed to be located outside the United States;     
   
   `(ii) there are reasonable procedures in place to assess the implementation 
       of the procedures described in subclause (i) to achieve the objective   
       described in that subclause;

   `(iii) the acquisition does not constitute electronic surveillance within
       the meaning of paragraph (1) or (3) of section 101(f), and, to the      
       extent any acquisition constitutes electronic surveillance within the
       meaning of paragraph (2) or (4) of section 101(f), that it is approved
       or minimized as appropriate;                                          
   
   `(iv) a significant purpose of the electronic surveillance is to obtain
       foreign intelligence information;
       
   `(v) the proposed minimization procedures meet the definition of
       minimization procedures under section 101(h); and
                                                        
   `(vi) the electronic surveillance involves obtaining 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 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;                      

   `(C) a general description of the nature of the foreign intelligence
       information sought; and                                               
   
   `(D) a general statement of the means by which the electronic surveillance  
       will be effected.                                                     

   `(2) SPECIFIC PERSONS AND PLACES NOT REQUIRED-                  
   
   `(A) An application for an order, or extension of an order, submitted under  
       subsection (a) shall not be required to identify--
       
   `(i) the persons, other than a foreign power, against whom the electronic   
       surveillance will be directed; or

   `(ii) the specific facilities, places, premises, or property at which the
       electronic surveillance will be directed or conducted.

   `(c) Application Approval; Order-
       
   `(1) APPLICATION APPROVAL- Notwithstanding any other law, a judge
       considering an application for an order, or extension of an order,   
       submitted under subsection (a) shall--
       
   `(A) assess--                 
   
   `(i) the procedures by which the Government determines that electronic
       surveillance under this section is directed at persons reasonably 
       believed to be located outside the United States; and            
                                                            
   `(ii) the minimization procedures to be used with respect to United States
       persons from such electronic surveillance activity; and               
   
   `(B) approve such application if the judge determines that the procedures
       assessed are in accordance with law and are reasonably designed to   
       determine whether the targets are outside the United States.
       
   `(2) ORDER- A judge approving an application pursuant to paragraph (1) shall
       issue an order that--                                                   
   
   `(A)(i) authorizes the electronic surveillance as requested; and
       
   `(ii) approves the minimization procedures with respect to United States
       persons;
       
   `(B) directs the applicant to follow the procedures referred to in section
       105B(b)(1)(B)(i) and the minimization procedures submitted by the
       Government as approved;
                              
   `(C) at the request of the applicant, requires a specified communications
       service provider, custodian, or other specified person, to furnish the
       applicant forthwith with all information, facilities, or technical    
       assistance necessary to accomplish the electronic surveillance in a
       manner that will protect the secrecy of the electronic surveillance and
       produce a minimum of interference with the services that provider,     
       custodian, or other person is providing; and
       
   `(D) at the request of the applicant, requires such communications provider,  
       custodian, or other specified person to maintain under security
       procedures approved by the Attorney General and the Director of National
       Intelligence any records concerning the electronic surveillance or the  
       aid furnished that such person wishes to maintain.                     
                                                         
   `(3) MINIMIZATION PROCEDURES- An application for reauthorization of an order
       issued under this section, shall contain a description of the         
       Government's minimization procedures.                        
   
   `(d) Guidelines for Surveillance of United States Persons- Not later than 15
       days after the date of the enactment of this section, the Attorney      
       General shall establish guidelines that address communications with
       persons inside the United States and United States persons outside the
       United States and are designed to ensure that an application is filed    
       under section 104 when the Attorney General seeks to continue electronic
       surveillance that began under this section but--                        
   
   `(1) effectively is or has become surveillance of a person within the United
       States; or                                                              
   
   `(2) is of a nature or quantity as to infringe on the reasonable expectation
       of privacy of persons within the United States.

   
   `(e) Compensation- The Government shall compensate, at the prevailing rate,
       a person for providing information, facilities, or assistance pursuant 
       to an order of the court under this section or pursuant to a directive
       under section 105C.
                          
   `(f) Liability- Notwithstanding any other law, no cause of action shall lie
       in any court against any person for providing any information,         
       facilities, or assistance in accordance with an order under this section
       or a directive under section 105C.
       
   `(g) Retention of Orders- An order granted under this section and directives
       under section 105C shall be retained for a period of not less than 10   
       years from the date on which such order or directive is made.         
                                                                    
   `(h) Appeal- The Government may appeal any denial of an application
       submitted under this section to the court established under section  
       103(b). If such court determines that the denial 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.
       
`IMMEDIATE AUTHORIZATION OF CERTAIN ELECTRONIC SURVEILLANCE
       
   `Sec. 105C. (a) In General- Notwithstanding any law, the Director of
       National Intelligence and the Attorney General, may, prior to the
       submission of an application under section 105B, authorize the immediate
       electronic surveillance of persons reasonably believed to be outside the
       United States if the Director of National Intelligence and the Attorney 
       General determine that it is in the interest of the national security of
       the United States to begin the electronic surveillance and such
       electronic surveillance is subject to the certification to be filed as
       set forth below. The authority in this subsection shall not be used for
       successive or multiple authorizations of electronic surveillance of the
       same or similar scope.
       
   `(b) In such case, the Attorney General shall--
   
   `(1) transmit within 5 days of the initiation of electronic surveillance
       pursuant to this section under seal to the court established under
       section 103(a) a copy of a certification made under section
       105B(b)(1)(B). 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 except upon motion of the       
       Government;
                  
   `(2) submit an application for the approval of such electronic surveillance 
       to the court established under section 103(a) as soon as practicable,   
       but in no event more than 10 days after the initiation of the electronic
       surveillance; and
       
   `(3) the court shall act on such application in accordance with section 105B
       within 30 days after receiving an application under this subsection. The
       court may grant one or more extensions of not more than 30 days, if the 
       court determines that additional time is needed. Any electronic
       surveillance subsequent to the court's action shall be conducted only if
       approved in accordance with section 105B. If the application is         
       disapproved, the data collected may be used or disclosed only as
       authorized by the court.
                                                                              
   `(c) Specific Persons and Places Not Required- A certification under
       subsection (a) is not required to identify--
       
   `(1) the person or foreign power against whom the electronic surveillance
       will be directed; or                                                 
   
   `(2) the specific facilities, places, premises, or property at which the   
       electronic surveillance will be directed or conducted.
       
   `(d) Directive- With respect to an authorization of electronic surveillance
       under this section, the Attorney General, in consultation with the
       Director of National Intelligence, may direct a specified communications
       service provider, custodian, or other specified person, to--            
                                                                    
   `(1) furnish the applicant forthwith with all information, facilities, or
       technical assistance necessary to accomplish the electronic surveillance
       in a manner that will protect the secrecy of the electronic surveillance
       and produce a minimum of interference with the services that provider,  
       custodian, or other person is providing; and
       
   `(2) maintain under security procedures approved by the Attorney General and
       the Director of National Intelligence any records concerning the        
       electronic surveillance or the aid furnished that such person wishes to
       maintain.
                
   `(e) Failure To Comply- In the case of a failure to comply with a directive
       issued pursuant to subsection (e), the Attorney General, in consultation
       with the Director of National Intelligence, may invoke the aid of the
       court established under section 103(a) to compel compliance with the
       directive, and the court shall issue an order requiring the person to   
       comply with the directive unless the court finds that the directive does
       not meet the requirements of this section or is otherwise unlawful.     
       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.
       
   `(f) Pendency of Appeal- With the approval of a court of competent
       jurisdiction, the Government may continue any electronic surveillance
       affected by a directive issued under this section during the pendency of
       consideration of an application submitted under section 105B, and any   
       appeal process, including the period during which a petition for writ of
       certiorari may be pending and the period of any review by the Supreme   
       Court of the United States.
       
`REPORT TO CONGRESS
       
   `Sec. 105D. Report to Congress- Not later than four months after the date of
       the enactment of this Act, the Inspector General of the Department of   
       Justice, in coordination with the Inspector General of the Office of the
       Director of National Intelligence and the Inspector General of the      
       National Security Agency, shall inform, in a manner consistent with the 
       national security, 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  
       electronic surveillance under this section during the previous
       four-month period. Among the elements of each report made under this
       section shall be--
       
   `(1) an assessment of whether the Act is functioning as intended and the
       degree to which the program is resulting in the collection of
       communications that originate or terminate inside the United States;   
   
   `(2) a description of the incidents of non-compliance with a directive
       issued by the Attorney General under section 105C;                
   
   `(3) a copy of any guidelines and procedures implementing this Act,      
       including the guidelines established pursuant to section 105B(d);
   
   `(4) a description of any incidents of non-compliance by an element of the
       Intelligence Community with guidelines or procedures established for  
       determining that the electronic surveillance authorized by the Attorney
       General and Director of National Intelligence directed at persons      
       reasonably believed to be outside the United States;
       
   `(5) a description of any incidents of non-compliance with respect to
       minimization procedures and approval requirements concerning U.S.
       persons; and
       
   `(6) the number of certifications and directives issued under section 105C  
       during the reporting period.'.
       
   (b) Technical and Conforming Amendment- 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:                                                      
                         
   `Sec. 105A. Clarification of surveillance of persons outside the United
       States.
       
   `Sec. 105B. Additional procedure for court approval authorizing certain 
       electronic surveillance.
       
   `Sec. 105C. Immediate authorization of certain electronic surveillance.     
       
   `Sec. 105D. Report to Congress.'.
       
  SEC. 3. EFFECTIVE DATE; TRANSITION PROCEDURES.
   
   (a) Except as otherwise provided, the amendments made by this Act shall take
       effect immediately after the date of the enactment of this Act.
       
   (b) 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 electronic surveillance or
       physical search 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.             
   
  SEC. 4. SUNSET.
   
   (a) Except as provided in subsections (b) and (c) the amendments made by 
       this Act shall cease to have force or effect 180 days after the date of
       enactment of this Act.                                                 
   
   (b) Any order under section 105B of the Foreign Intelligence Surveillance 
       Act of 1978, as added by this Act, in effect on the date described in  
       paragraph (1) shall continue in effect until the date of the expiration
       of such order.
       
   (c) The expiration of amendments pursuant to subsection (a) shall not have
       any effect upon the liability of any party under subsection (e) of    
       section 105B. Notwithstanding subsection (a), subsection (e) of section
       105B shall remain in effect with regard to action taken in accordance  
       with sections 105A, B, C, and D.


  The amendment (No. 2649) to S. 1927 is as follows:

                (Purpose: To provide a sunset provision)
                                                        
       At the end, add the following:                   
       (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)).



                                S. 1927
     
       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 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 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, 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
     
[[Page S10872]]
     
     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--      
       (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.
       (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)).



                                       UNCLASSIFIED


                         DIRECTOR OF NATIONAL INTELLIGENCE
                                WASHINGTON, DC 20511

                                                                                   July 27, 2007

The Honorable Harry Reid
Majority Leader
United States Senate

The Honorable Mitch McConnell
Minority Leader
United States Senate

The Honorable Nancy Pelosi
Speaker
House of Representatives

The Honorable John A. Boehner
Minority Leader
House of Representatives

Dear Majority Leader Reid, Minority Leader McConnell, Madam Speaker, and Minority
Leader Boehner:

      I appreciate the opportunity for today's meeting between staff members and the
constructive dialogue on legislation to modernize the Foreign Intelligence Surveillance Act
(FISA) and restore our capability to help defend the country effectively. I am pleased that
there appears to be genuine agreement on the need to act before the August recess to close
gaps in our current capability.

      Congressional staff provided thoughts on possible modifications of the current FISA
court process as an interim solution to remedy this gap. Unfortunately, this proposal would
not close critical gaps in the Intelligence Community's ability to provide warning of threats to
the country. The proposal would continue the current situation that, in a significant number of
cases, we would have to obtain court orders to collect foreign intelligence about foreign
targets located overseas. The proposal would also require in practice that we continue to
divert scarce counterterrorism experts to compiling court submissions in order to gain judicial
approval to gather necessary foreign intelligence about these overseas targets. I conclude this
proposal would not solve the deep concerns I have expressed about the current situation
facing the country.

      Attached is an interim proposal which I believe will effectively close the critical gaps in
our intelligence capability in the short term. Although my strong preference is the immediate
adoption of the proposal I transmitted to Congress in April, in light of the urgency of the

                                       UNCLASSIFIED

                                       UNCLASSIFIED

situation, I offer the attached significantly narrowed proposal focused on the current, urgent
need of the Intelligence Community to provide warning. The proposal would make clear that
court orders are not necessary to effectively collect foreign intelligence about foreign targets
overseas. The proposal would also provide a means of obtaining assistance that may be
required from private parties.

        It is also my strong preference that we immediately provide liability protection for
those who are alleged to have assisted the government following September 11, 2001.
However, in recognition of your indication that more time is necessary to consider this
matter, the interim proposal does not contain such a provision. While far from ideal, this
interim proposal would immediately give our Intelligence Community the tools it needs to
protect the Nation, pending continued discussion of this important additional issue.

      I am available to brief all members of the Congress at their earliest convenience on this
matter. I look forward to continuing our discussions and constructive dialogue. If you have
any questions on this matter, please contact me or the Chief of Staff to the President.

Sincerely,

J.M. McConnell


cc: The Honorable John D. Rockefeller IV
The Honorable Christopher S. Bond
The Honorable Silvestre Reyes
The Honorable Peter Hoekstra
The Honorable Patrick J. Leahy
The Honorable Arlen Specter
The Honorable John Conyers, Jr.
The Honorable Lamar S. Smith
Attachment: As stated




                                        UNCLASSIFIED

Sec. 401. DEFINITION OF ELECTRONIC SURVEILLANCE.

Subsection (f) of section 101 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801) is amended by
inserting after subsection (f)(4) the following:

"Provided, that nothing in this definition shall be
construed to encompass surveillance directed at a person
reasonably believed to be located outside of the United
States."

SEC. 402. AUTHORIZATION FOR THE ACQUISITION OF CERTAIN
FOREIGN INTELLIGENCE INFORMATION.

Title I of the Foreign Intelligence Surveillance Act is
amended by adding after section 102 (50 U.S.C. ยง 1802) the
following:

"AUTHORIZATION FOR ACQUISITION OF FOREIGN INTELLIGENCE
INFORMATION

"SEC. 102A. (a) IN GENERAL.--Notwithstanding any other law,
the President, acting through 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
Attorney General certifies in writing under oath that the
Attorney General has determined that --

   "(1) the acquisition does not constitute electronic
   surveillance;

   "(2) 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 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;

   "(3) a significant purpose of the acquisition is to
   obtain foreign intelligence information; and

   "(4) the minimization procedures to be used with
   respect to such acquisition activity meet the
   definition of minimization procedures under section
   101(h).

             "(b) SPECIFIC PLACE NOT REQUIRED.--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) SUBMISSION OF CERTIFICATION.--The Attorney
General shall immediately transmit 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 102B.

             "(d) MINIMIZATION PROCEDURES.--An acquisition
under this section may be conducted only in accordance with
the certification of the Attorney General and the
minimization procedures adopted by the Attorney General.

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).

"DIRECTIVES RELATING TO ELECTRONIC SURVEILLANCE AND OTHER
ACQUISITIONS OF FOREIGN INTELLIGENCE INFORMATION

"SEC. 102B. (a) DIRECTIVE.--With respect to an
authorization of an acquisition under section 102A, the
Attorney General may direct a person to

   "(1) immediately provide the Government with all
   information, facilities, and assistance necessary to
   accomplish the acquisition of foreign intelligence
   information 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.

       "(b) COMPENSATION.--The Government shall
compensate, at the prevailing rate, a person for providing
information, facilities, or assistance pursuant to
subsection (a).

       "(c) FAILURE TO COMPLY.--In the case of a failure
to comply with a directive issued pursuant to subsection
(a), the Attorney General may invoke the 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 (a) 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.

       "(d) REVIEW OF PETITIONS.--(1) (A) A person
receiving a directive issued pursuant to subsection (a) 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.

       "(e) APPEALS.--The Government or a person
receiving a directive reviewed pursuant to subsection (d)
may file a petition with the Court of Review established
under section 103(b) for review of the decision issued
pursuant to subsection (d) 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.

       "(f) PROCEEDINGS.--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.

       "(g) SEALED PETITIONS.--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.

       "(h) LIABILITY.--No cause of action shall lie in
any court against any person for providing any information,
facilities, or assistance in accordance with a directive
under this section.

       "(i) RETENTION OF DIRECTIVES AND ORDERS.--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.".



(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 102 the following:

   "102A. Authorization for acquisition of foreign
   intelligence information.

   "102B. Directives relating to electronic surveillance
   and other acquisitions of
   foreign intelligence information.

SEC. 403. TECHNICAL AMENDMENT AND CONFORMING AMENDMENTS.

Section 103(e) of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1801 et seq.) is amended

   (A)in paragraph (1), by striking "501(f)(1)" and
   inserting "10213(d) or 501(f)(1)"; and

   (B)in paragraph (2), by striking "501(f)(1)" and
   inserting "10213(d) or 501(f)(1)".

SEC. 404. EFFECTIVE DATE.

(a)Except as otherwise provided, the amendments made by
this Act shall take effect immediately after the date of
the enactment of this Act.

(b)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)) may 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 court established under section 103(a) of such Act
shall extinguish any such order at the request of the
applicant.

SEC. 405. CLARIFICATION ON THE DEFINITION OF ELECTRONIC
SURVEILLANCE.

The Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801) is hereby amended by adding a new section 112
as follows:

   "Section 112. Clarifications on the Definition of
   Electronic Surveillance. (1) Whenever a member of the
   Intelligence Community, as defined in section 3 of the
   National Security Act of 1947 (50 U.S.C. 401a), as
   amended, intentionally acquires the communications of
   a non-U.S. person reasonably believed to be located
   outside the United States and the primary purpose of
   such acquisition to acquire the communications of a
   particular, known person reasonably believed to be
   located in the United States, such activities shall be
   considered "electronic surveillance" as defined in
   section 101(f) (1)."


Comments: Post a Comment

Links to this post:

Create a Link



<< Home

Archives

March 2006   April 2006   May 2006   June 2006   July 2006   August 2006   September 2006   October 2006   November 2006   December 2006   January 2007   February 2007   March 2007   April 2007   May 2007   June 2007   July 2007   August 2007   September 2007   November 2007   December 2007   January 2008   February 2008   March 2008   April 2008   May 2008   June 2008   July 2008   August 2008   September 2008   March 2009   April 2009  

This page is powered by Blogger. Isn't yours?