Text: S.1927 — 110th Congress (2007-2008)All Information (Except Text)

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Public Law No: 110-55 (08/05/2007)

 
[110th Congress Public Law 55]
[From the U.S. Government Printing Office]


[DOCID: f:publ055.110]

[[Page 551]]

                       PROTECT AMERICA ACT OF 2007

[[Page 121 STAT. 552]]

Public Law 110-55
110th Congress

                                 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. <<NOTE: Aug. 5, 
                          2007 -  [S. 1927]>> 

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress <<NOTE: Protect America Act of 
2007. 50 USC 1801 note.>> 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.  <<NOTE: 50 USC 1805a.>> 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.  <<NOTE: 50 USC 1805b.>> (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

[[Page 121 STAT. 553]]

        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 <<NOTE: Certification.>>  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 <<NOTE: Records.>>  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. <<NOTE: Reports.>> 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

[[Page 121 STAT. 554]]

aid of the court established under section 103(a) to compel compliance 
with the directive. <<NOTE: Courts.>>  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) <<NOTE: Petitions.>> 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 <<NOTE: Deadline.>> 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. <<NOTE: Deadline. Records.>> 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) <<NOTE: Deadline.>> 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. <<NOTE: Records.>> 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. <<NOTE: Records.>> 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) <<NOTE: 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.

    ``(l) Notwithstanding any other law, no cause of action shall lie in 
any court against any person for providing any information,

[[Page 121 STAT. 555]]

facilities, or assistance in accordance with a directive under this 
section.
    ``(m) <<NOTE: Records.>> 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.  <<NOTE: Deadlines. 50 USC 1805c.>> (a) No later than 
120 days after the effective date of this Act, the Attorney General 
shall submit to the Court established under section 103(a), the 
procedures by which the Government determines that acquisitions 
conducted pursuant to section 105B do not constitute electronic 
surveillance. The procedures submitted pursuant to this section shall be 
updated and submitted to the Court on an annual basis.

    ``(b) No later than 180 days after the effective date of this Act, 
the court established under section 103(a) shall assess the Government's 
determination under section 105B(a)(1) that those procedures are 
reasonably designed to ensure that acquisitions conducted pursuant to 
section 105B do not constitute electronic surveillance. The court's 
review shall be limited to whether the Government's determination is 
clearly erroneous.
    ``(c) If the court concludes that the determination is not clearly 
erroneous, it shall enter an order approving the continued use of such 
procedures. If the court concludes that the determination is clearly 
erroneous, it shall issue an order directing the Government to submit 
new procedures within 30 days or cease any acquisitions under section 
105B that are implicated by the court's order.
    ``(d) The Government may appeal any order issued under subsection 
(c) to the court established under section 103(b). <<NOTE: Records.>> 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--

[[Page 121 STAT. 556]]

                    (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. <<NOTE: 50 USC 1803 note.>> 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.

[[Page 121 STAT. 557]]

    (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)).

    Approved August 5, 2007.

LEGISLATIVE HISTORY--S. 1927:
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CONGRESSIONAL RECORD, Vol. 153 (2007):
            Aug. 3, considered and passed Senate.
            Aug. 4, considered and passed House.

                                  <all>