[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6304 Enrolled Bill (ENR)]
H.R.6304
One Hundred Tenth Congress
of the
United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Thursday,
the third day of January, two thousand and eight
An Act
To amend the Foreign Intelligence Surveillance Act of 1978 to establish
a procedure for authorizing certain acquisitions of foreign
intelligence, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,

3d232108463ad74bbaa3decc0b45530ebd09c6601418eaccee329921167491f1

(a) Short Title.--This Act may be cited as the ``Foreign
Intelligence Surveillance Act of 1978 Amendments Act of 2008'' or the
``FISA Amendments Act of 2008''.
(b) Table of Contents.--The table of contents for this Act is as
follows:

62da04412070ee1233e0f8ca9c4fe807405b27cf911343779499dc9989afb820

80f7fd4af2e64083320f9db534affbbf150db3262a5aae09f8df9acb7c8b9287

TITLE I

-FOREIGN INTELLIGENCE SURVEILLANCE

and interception of certain communications may be conducted.

769253972b0cccd531c91d61923b5139fe78f4ee59f1b497812c6d3ed21551c1

Foreign Intelligence Surveillance Act of 1978.

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9d06cb17106b5efa588b9b58535249c37cba4955ef2a3d139a30e10822be129a

TITLE II

-PROTECTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS

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SURVEILLANCE AND INTERCEPTION OF CERTAIN COMMUNICATIONS MAY BE
CONDUCTED.
(a) Statement of Exclusive Means.--Title I of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is
amended by adding at the end the following new section:
``statement of exclusive means by which electronic surveillance and
interception of certain communications may be conducted
``Sec. 112.  (a) Except as provided in subsection (b), the
procedures of chapters 119, 121, and 206 of title 18, United States
Code, and this Act shall be the exclusive means by which electronic
surveillance and the interception of domestic wire, oral, or electronic
communications may be conducted.
``(b) Only an express statutory authorization for electronic
surveillance or the interception of domestic wire, oral, or electronic
communications, other than as an amendment to this Act or chapters 119,
121, or 206 of title 18, United States Code, shall constitute an
additional exclusive means for the purpose of subsection (a).''.
(b) Offense.--Section 109(a) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1809(a)) is amended by striking
``authorized by statute'' each place it appears and inserting
``authorized by this Act, chapter 119, 121, or 206 of title 18, United
States Code, or any express statutory authorization that is an
additional exclusive means for conducting electronic surveillance under
section 112.''; and
(c) Conforming Amendments.--
(1) Title 18, united states code.--Section 2511(2)(a) of title
18, United States Code, is amended by adding at the end the
following:
``(iii) If a certification under subparagraph (ii)(B)
for assistance to obtain foreign intelligence information
is based on statutory authority, the certification shall
identify the specific statutory provision and shall certify
that the statutory requirements have been met.''; and
(2) 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 111, the following new item:
``Sec. 112. Statement of exclusive means by which electronic
surveillance and interception of certain communications may be
conducted.''.

ea8f1ce6c89f2b0e007a620f697b8a1695359b97bd339a012b0ac6fed0b95826

FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.
(a) Inclusion of Certain Orders in Semiannual Reports of Attorney
General.--Subsection (a)(5) of section 601 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1871) is amended by striking ``(not
including orders)'' and inserting ``, orders,''.
(b) Reports by Attorney General on Certain Other Orders.--Such
section 601 is further amended by adding at the end the following:
``(c) Submissions to Congress.--The Attorney General shall submit
to the committees of Congress referred to in subsection (a)--
``(1) a copy of any decision, order, or opinion issued by the
Foreign Intelligence Surveillance Court or the Foreign Intelligence
Surveillance Court of Review that includes significant construction
or interpretation of any provision of this Act, and any pleadings,
applications, or memoranda of law associated with such decision,
order, or opinion, not later than 45 days after such decision,
order, or opinion is issued; and
``(2) a copy of each such decision, order, or opinion, and any
pleadings, applications, or memoranda of law associated with such
decision, order, or opinion, that was issued during the 5-year
period ending on the date of the enactment of the FISA Amendments
Act of 2008 and not previously submitted in a report under
subsection (a).
``(d) Protection of National Security.--The Attorney General, in
consultation with the Director of National Intelligence, may authorize
redactions of materials described in subsection (c) that are provided
to the committees of Congress referred to in subsection (a), if such
redactions are necessary to protect the national security of the United
States and are limited to sensitive sources and methods information or
the identities of targets.''.
(c) Definitions.--Such section 601, as amended by subsections (a)
and (b), is further amended by adding at the end the following:
``(e) Definitions.--In this section:
``(1) Foreign intelligence surveillance court.--The term
`Foreign Intelligence Surveillance Court' means the court
established under section 103(a).
``(2) Foreign intelligence surveillance court of review.--The
term `Foreign Intelligence Surveillance Court of Review' means the
court established under section 103(b).''.

11014cb02574772a959a1f52583f68710f659c3a3b4f8ea149fabd9440a3c8d1

Section 104 of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1804) is amended--
(1) in subsection (a)--
(A) by striking paragraphs (2) and (11);
(B) by redesignating paragraphs (3) through (10) as
paragraphs (2) through (9), respectively;
(C) in paragraph (5), as redesignated by subparagraph (B)
of this paragraph, by striking ``detailed'';
(D) in paragraph (6), as redesignated by subparagraph (B)
of this paragraph, in the matter preceding subparagraph (A)--
(i) by striking ``Affairs or'' and inserting
``Affairs,''; and
(ii) by striking ``Senate--'' and inserting ``Senate,
or the Deputy Director of the Federal Bureau of
Investigation, if designated by the President as a
certifying official--'';
(E) in paragraph (7), as redesignated by subparagraph (B)
of this paragraph, by striking ``statement of'' and inserting
``summary statement of'';
(F) in paragraph (8), as redesignated by subparagraph (B)
of this paragraph, by adding ``and'' at the end; and
(G) in paragraph (9), as redesignated by subparagraph (B)
of this paragraph, by striking ``; and'' and inserting a
period;
(2) by striking subsection (b);
(3) by redesignating subsections (c) through (e) as subsections
(b) through (d), respectively; and
(4) in paragraph (1)(A) of subsection (d), as redesignated by
paragraph (3) of this subsection, by striking ``or the Director of
National Intelligence'' and inserting ``the Director of National
Intelligence, or the Director of the Central Intelligence Agency''.

af23e8a82a0023d355c86b3fc2d09535fb07dbda28a374dc8c8baab5be166a9d

(a) In General.--Section 105 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1805) is amended--
(1) in subsection (a)--
(A) by striking paragraph (1); and
(B) by redesignating paragraphs (2) through (5) as
paragraphs (1) through (4), respectively;
(2) in subsection (b), by striking ``(a)(3)'' and inserting
``(a)(2)'';
(3) in subsection (c)(1)--
(A) in subparagraph (D), by adding ``and'' at the end;
(B) in subparagraph (E), by striking ``; and'' and
inserting a period; and
(C) by striking subparagraph (F);
(4) by striking subsection (d);
(5) by redesignating subsections (e) through (i) as subsections
(d) through (h), respectively;
(6) by amending subsection (e), as redesignated by paragraph
(5) of this section, to read as follows:
``(e)(1) Notwithstanding any other provision of this title, the
Attorney General may authorize the emergency employment of electronic
surveillance if the Attorney General--
``(A) reasonably determines 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;
``(B) reasonably determines that the factual basis for the
issuance of an order under this title to approve such electronic
surveillance exists;
``(C) informs, either personally or through a designee, a judge
having jurisdiction under section 103 at the time of such
authorization that the decision has been made to employ emergency
electronic surveillance; and
``(D) makes an application in accordance with this title to a
judge having jurisdiction under section 103 as soon as practicable,
but not later than 7 days after the Attorney General authorizes
such surveillance.
``(2) If the Attorney General authorizes the emergency employment
of electronic surveillance under paragraph (1), the Attorney General
shall require that the minimization procedures required by this title
for the issuance of a judicial order be followed.
``(3) In the absence of a judicial order approving such electronic
surveillance, the surveillance shall terminate when the information
sought is obtained, when the application for the order is denied, or
after the expiration of 7 days from the time of authorization by the
Attorney General, whichever is earliest.
``(4) A denial of the application made under this subsection may be
reviewed as provided in section 103.
``(5) In the event that such application for approval is denied, or
in any other case where the electronic surveillance is terminated and
no order is issued approving the surveillance, no information obtained
or evidence derived from such surveillance shall be received in
evidence or otherwise disclosed in any trial, hearing, or other
proceeding in or before any court, grand jury, department, office,
agency, regulatory body, legislative committee, or other authority of
the United States, a State, or political subdivision thereof, and no
information concerning any United States person acquired from such
surveillance shall subsequently be used or disclosed in any other
manner by Federal officers or employees without the consent of such
person, except with the approval of the Attorney General if the
information indicates a threat of death or serious bodily harm to any
person.
``(6) The Attorney General shall assess compliance with the
requirements of paragraph (5).''; and
(7) by adding at the end the following:
``(i) In any case in which the Government makes an application to a
judge under this title to conduct electronic surveillance involving
communications and the judge grants such application, upon the request
of the applicant, the judge shall also authorize the installation and
use of pen registers and trap and trace devices, and direct the
disclosure of the information set forth in section 402(d)(2).''.
(b) Conforming Amendment.--Section 108(a)(2)(C) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1808(a)(2)(C)) is
amended by striking ``105(f)'' and inserting ``105(e)'';

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Subsection (i) of section 106 of the Foreign Intelligence
Surveillance Act of 1978 (8 U.S.C. 1806) is amended by striking ``radio
communication'' and inserting ``communication''.

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(a) Applications.--Section 303 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1823) is amended--
(1) in subsection (a)--
(A) by striking paragraph (2);
(B) by redesignating paragraphs (3) through (9) as
paragraphs (2) through (8), respectively;
(C) in paragraph (2), as redesignated by subparagraph (B)
of this paragraph, by striking ``detailed'';
(D) in paragraph (3)(C), as redesignated by subparagraph
(B) of this paragraph, by inserting ``or is about to be''
before ``owned''; and
(E) in paragraph (6), as redesignated by subparagraph (B)
of this paragraph, in the matter preceding subparagraph (A)--
(i) by striking ``Affairs or'' and inserting
``Affairs,''; and
(ii) by striking ``Senate--'' and inserting ``Senate,
or the Deputy Director of the Federal Bureau of
Investigation, if designated by the President as a
certifying official--''; and
(2) in subsection (d)(1)(A), by striking ``or the Director of
National Intelligence'' and inserting ``the Director of National
Intelligence, or the Director of the Central Intelligence Agency''.
(b) Orders.--Section 304 of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1824) is amended--
(1) in subsection (a)--
(A) by striking paragraph (1);
(B) by redesignating paragraphs (2) through (5) as
paragraphs (1) through (4), respectively; and
(C) in paragraph (2)(B), as redesignated by subparagraph
(B) of this paragraph, by inserting ``or is about to be''
before ``owned''; and
(2) by amending subsection (e) to read as follows:
``(e)(1) Notwithstanding any other provision of this title, the
Attorney General may authorize the emergency employment of a physical
search if the Attorney General--
``(A) reasonably determines that an emergency situation exists
with respect to the employment of a physical search to obtain
foreign intelligence information before an order authorizing such
physical search can with due diligence be obtained;
``(B) reasonably determines that the factual basis for issuance
of an order under this title to approve such physical search
exists;
``(C) informs, either personally or through a designee, a judge
of the Foreign Intelligence Surveillance Court at the time of such
authorization that the decision has been made to employ an
emergency physical search; and
``(D) makes an application in accordance with this title to a
judge of the Foreign Intelligence Surveillance Court as soon as
practicable, but not more than 7 days after the Attorney General
authorizes such physical search.
``(2) If the Attorney General authorizes the emergency employment
of a physical search under paragraph (1), the Attorney General shall
require that the minimization procedures required by this title for the
issuance of a judicial order be followed.
``(3) In the absence of a judicial order approving such physical
search, the physical search shall terminate when the information sought
is obtained, when the application for the order is denied, or after the
expiration of 7 days from the time of authorization by the Attorney
General, whichever is earliest.
``(4) A denial of the application made under this subsection may be
reviewed as provided in section 103.
``(5) In the event that such application for approval is denied, or
in any other case where the physical search is terminated and no order
is issued approving the physical search, no information obtained or
evidence derived from such physical search shall be received in
evidence or otherwise disclosed in any trial, hearing, or other
proceeding in or before any court, grand jury, department, office,
agency, regulatory body, legislative committee, or other authority of
the United States, a State, or political subdivision thereof, and no
information concerning any United States person acquired from such
physical search shall subsequently be used or disclosed in any other
manner by Federal officers or employees without the consent of such
person, except with the approval of the Attorney General if the
information indicates a threat of death or serious bodily harm to any
person.
``(6) The Attorney General shall assess compliance with the
requirements of paragraph (5).''.
(c) Conforming Amendments.--The Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1801 et seq.) is amended--
(1) in section 304(a)(4), as redesignated by subsection (b) of
this section, by striking ``303(a)(7)(E)'' and inserting
``303(a)(6)(E)''; and
(2) in section 305(k)(2), by striking ``303(a)(7)'' and
inserting ``303(a)(6)''.

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DEVICES.
Section 403 of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1843) is amended--
(1) in subsection (a)(2), by striking ``48 hours'' and
inserting ``7 days''; and
(2) in subsection (c)(1)(C), by striking ``48 hours'' and
inserting ``7 days''.

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(a) Designation of Judges.--Subsection (a) of section 103 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803) is
amended by inserting ``at least'' before ``seven of the United States
judicial circuits''.
(b) En Banc Authority.--
(1) In general.--Subsection (a) of section 103 of the Foreign
Intelligence Surveillance Act of 1978, as amended by subsection (a)
of this section, is further amended--
(A) by inserting ``(1)'' after ``(a)''; and
(B) by adding at the end the following new paragraph:
``(2)(A) The court established under this subsection may, on its
own initiative, or upon the request of the Government in any proceeding
or a party under section 501(f) or paragraph (4) or (5) of section
702(h), hold a hearing or rehearing, en banc, when ordered by a
majority of the judges that constitute such court upon a determination
that--
``(i) en banc consideration is necessary to secure or maintain
uniformity of the court's decisions; or
``(ii) the proceeding involves a question of exceptional
importance.
``(B) Any authority granted by this Act to a judge of the court
established under this subsection may be exercised by the court en
banc. When exercising such authority, the court en banc shall comply
with any requirements of this Act on the exercise of such authority.
``(C) For purposes of this paragraph, the court en banc shall
consist of all judges who constitute the court established under this
subsection.''.
(2) Conforming amendments.--The Foreign Intelligence
Surveillance Act of 1978 is further amended--
(A) in subsection (a) of section 103, as amended by this
subsection, by inserting ``(except when sitting en banc under
paragraph (2))'' after ``no judge designated under this
subsection''; and
(B) in section 302(c) (50 U.S.C. 1822(c)), by inserting
``(except when sitting en banc)'' after ``except that no
judge''.
(c) Stay or Modification During an Appeal.--Section 103 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803) is
amended--
(1) by redesignating subsection (f) as subsection (g); and
(2) by inserting after subsection (e) the following new
subsection:
``(f)(1) A judge of the court established under subsection (a), the
court established under subsection (b) or a judge of that court, or the
Supreme Court of the United States or a justice of that court, may, in
accordance with the rules of their respective courts, enter a stay of
an order or an order modifying an order of the court established under
subsection (a) or the court established under subsection (b) entered
under any title of this Act, while the court established under
subsection (a) conducts a rehearing, while an appeal is pending to the
court established under subsection (b), or while a petition of
certiorari is pending in the Supreme Court of the United States, or
during the pendency of any review by that court.
``(2) The authority described in paragraph (1) shall apply to an
order entered under any provision of this Act.''.
(d) Authority of Foreign Intelligence Surveillance Court.--Section
103 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1803), as amended by this Act, is amended by adding at the end the
following:
``(i) Nothing in this Act shall be construed to reduce or
contravene the inherent authority of the court established under
subsection (a) to determine or enforce compliance with an order or a
rule of such court or with a procedure approved by such court.''.

8a31ddef5b5e6cda11c51224a79c6fca3464ba72456b272c316b55feb08d7d3f

(a) Definitions.--
(1) Foreign power.--Subsection (a) of section 101 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(a))
is amended--
(A) in paragraph (5), by striking ``persons; or'' and
inserting ``persons;'';
(B) in paragraph (6) by striking the period and inserting
``; or''; and
(C) by adding at the end the following new paragraph:
``(7) an entity not substantially composed of United States
persons that is engaged in the international proliferation of
weapons of mass destruction.''.
(2) Agent of a foreign power.--Subsection (b)(1) of such
section 101 is amended--
(A) in subparagraph (B), by striking ``or'' at the end;
(B) in subparagraph (C), by striking ``or'' at the end; and
(C) by adding at the end the following new subparagraphs:
``(D) engages in the international proliferation of weapons
of mass destruction, or activities in preparation therefor; or
``(E) engages in the international proliferation of weapons
of mass destruction, or activities in preparation therefor for
or on behalf of a foreign power; or''.
(3) Foreign intelligence information.--Subsection (e)(1)(B) of
such section 101 is amended by striking ``sabotage or international
terrorism'' and inserting ``sabotage, international terrorism, or
the international proliferation of weapons of mass destruction''.
(4) Weapon of mass destruction.--Such section 101 is amended by
adding at the end the following new subsection:
``(p) `Weapon of mass destruction' means--
``(1) any explosive, incendiary, or poison gas device that is
designed, intended, or has the capability to cause a mass casualty
incident;
``(2) any weapon that is designed, intended, or has the
capability to cause death or serious bodily injury to a significant
number of persons through the release, dissemination, or impact of
toxic or poisonous chemicals or their precursors;
``(3) any weapon involving a biological agent, toxin, or vector
(as such terms are defined in section 178 of title 18, United
States Code) that is designed, intended, or has the capability to
cause death, illness, or serious bodily injury to a significant
number of persons; or
``(4) any weapon that is designed, intended, or has the
capability to release radiation or radioactivity causing death,
illness, or serious bodily injury to a significant number of
persons.''.
(b) Use of Information.--
(1) In general.--Section 106(k)(1)(B) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1806(k)(1)(B)) is
amended by striking ``sabotage or international terrorism'' and
inserting ``sabotage, international terrorism, or the international
proliferation of weapons of mass destruction''.
(2) Physical searches.--Section 305(k)(1)(B) of such Act (50
U.S.C. 1825(k)(1)(B)) is amended by striking ``sabotage or
international terrorism'' and inserting ``sabotage, international
terrorism, or the international proliferation of weapons of mass
destruction''.
(c) Technical and Conforming Amendments.--The Foreign Intelligence
Surveillance Act of 1978 is further amended--
(1) in paragraph (2) of section 105(d) (50 U.S.C. 1805(d)), as
redesignated by section 105(a)(5) of this Act, by striking
``section 101(a) (5) or (6)'' and inserting ``paragraph (5), (6),
or (7) of section 101(a)'';
(2) in section 301(1) (50 U.S.C. 1821(1)), by inserting
``weapon of mass destruction,'' after ``person,''; and
(3) in section 304(d)(2) (50 U.S.C. 1824(d)(2)), by striking
``section 101(a) (5) or (6)'' and inserting ``paragraph (5), (6),
or (7) of section 101(a)''.

65cccfec4f14cdb4a432b74f10b3d1b8ca3440d6a6e7a0188a9036f871e5ad51

FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.
The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801
et seq.), as amended by section 101, is further amended by adding at
the end the following new title:
``TITLE VIII--PROTECTION OF PERSONS ASSISTING THE GOVERNMENT
``SEC. 801. DEFINITIONS.
``In this title:
``(1) Assistance.--The term `assistance' means the provision
of, or the provision of access to, information (including
communication contents, communications records, or other
information relating to a customer or communication), facilities,
or another form of assistance.
``(2) Civil action.--The term `civil action' includes a covered
civil action.
``(3) Congressional intelligence committees.--The term
`congressional intelligence committees' means--
``(A) the Select Committee on Intelligence of the Senate;
and
``(B) the Permanent Select Committee on Intelligence of the
House of Representatives.
``(4) Contents.--The term `contents' has the meaning given that
term in section 101(n).
``(5) Covered civil action.--The term `covered civil action'
means a civil action filed in a Federal or State court that--
``(A) alleges that an electronic communication service
provider furnished assistance to an element of the intelligence
community; and
``(B) seeks monetary or other relief from the electronic
communication service provider related to the provision of such
assistance.
``(6) Electronic communication service provider.--The term
`electronic communication service provider' means--
``(A) a telecommunications carrier, as that term is defined
in section 3 of the Communications Act of 1934 (47 U.S.C. 153);
``(B) a provider of electronic communication service, as
that term is defined in section 2510 of title 18, United States
Code;
``(C) a provider of a remote computing service, as that
term is defined in section 2711 of title 18, United States
Code;
``(D) any other communication service provider who has
access to wire or electronic communications either as such
communications are transmitted or as such communications are
stored;
``(E) a parent, subsidiary, affiliate, successor, or
assignee of an entity described in subparagraph (A), (B), (C),
or (D); or
``(F) an officer, employee, or agent of an entity described
in subparagraph (A), (B), (C), (D), or (E).
``(7) Intelligence community.--The term `intelligence
community' has the meaning given the term in section 3(4) of the
National Security Act of 1947 (50 U.S.C. 401a(4)).
``(8) Person.--The term `person' means--
``(A) an electronic communication service provider; or
``(B) a landlord, custodian, or other person who may be
authorized or required to furnish assistance pursuant to--
``(i) an order of the court established under section
103(a) directing such assistance;
``(ii) a certification in writing under section
2511(2)(a)(ii)(B) or 2709(b) of title 18, United States
Code; or
``(iii) a directive under section 102(a)(4), 105B(e),
as added by section 2 of the Protect America Act of 2007
(Public Law 110-55), or 702(h).
``(9) State.--The term `State' means any State, political
subdivision of a State, the Commonwealth of Puerto Rico, the
District of Columbia, and any territory or possession of the United
States, and includes any officer, public utility commission, or
other body authorized to regulate an electronic communication
service provider.
``SEC. 802. PROCEDURES FOR IMPLEMENTING STATUTORY DEFENSES.
``(a) Requirement for Certification.--Notwithstanding any other
provision of law, a civil action may not lie or be maintained in a
Federal or State court against any person for providing assistance to
an element of the intelligence community, and shall be promptly
dismissed, if the Attorney General certifies to the district court of
the United States in which such action is pending that--
``(1) any assistance by that person was provided pursuant to an
order of the court established under section 103(a) directing such
assistance;
``(2) any assistance by that person was provided pursuant to a
certification in writing under section 2511(2)(a)(ii)(B) or 2709(b)
of title 18, United States Code;
``(3) any assistance by that person was provided pursuant to a
directive under section 102(a)(4), 105B(e), as added by section 2
of the Protect America Act of 2007 (Public Law 110-55), or 702(h)
directing such assistance;
``(4) in the case of a covered civil action, the assistance
alleged to have been provided by the electronic communication
service provider was--
``(A) in connection with an intelligence activity involving
communications that was--
``(i) authorized by the President during the period
beginning on September 11, 2001, and ending on January 17,
2007; and
``(ii) designed to detect or prevent a terrorist
attack, or activities in preparation for a terrorist
attack, against the United States; and
``(B) the subject of a written request or directive, or a
series of written requests or directives, from the Attorney
General or the head of an element of the intelligence community
(or the deputy of such person) to the electronic communication
service provider indicating that the activity was--
``(i) authorized by the President; and
``(ii) determined to be lawful; or
``(5) the person did not provide the alleged assistance.
``(b) Judicial Review.--
``(1) Review of certifications.--A certification under
subsection (a) shall be given effect unless the court finds that
such certification is not supported by substantial evidence
provided to the court pursuant to this section.
``(2) Supplemental materials.--In its review of a certification
under subsection (a), the court may examine the court order,
certification, written request, or directive described in
subsection (a) and any relevant court order, certification, written
request, or directive submitted pursuant to subsection (d).
``(c) Limitations on Disclosure.--If the Attorney General files a
declaration under section 1746 of title 28, United States Code, that
disclosure of a certification made pursuant to subsection (a) or the
supplemental materials provided pursuant to subsection (b) or (d) would
harm the national security of the United States, the court shall--
``(1) review such certification and the supplemental materials
in camera and ex parte; and
``(2) limit any public disclosure concerning such certification
and the supplemental materials, including any public order
following such in camera and ex parte review, to a statement as to
whether the case is dismissed and a description of the legal
standards that govern the order, without disclosing the paragraph
of subsection (a) that is the basis for the certification.
``(d) Role of the Parties.--Any plaintiff or defendant in a civil
action may submit any relevant court order, certification, written
request, or directive to the district court referred to in subsection
(a) for review and shall be permitted to participate in the briefing or
argument of any legal issue in a judicial proceeding conducted pursuant
to this section, but only to the extent that such participation does
not require the disclosure of classified information to such party. To
the extent that classified information is relevant to the proceeding or
would be revealed in the determination of an issue, the court shall
review such information in camera and ex parte, and shall issue any
part of the court's written order that would reveal classified
information in camera and ex parte and maintain such part under seal.
``(e) Nondelegation.--The authority and duties of the Attorney
General under this section shall be performed by the Attorney General
(or Acting Attorney General) or the Deputy Attorney General.
``(f) Appeal.--The courts of appeals shall have jurisdiction of
appeals from interlocutory orders of the district courts of the United
States granting or denying a motion to dismiss or for summary judgment
under this section.
``(g) Removal.--A civil action against a person for providing
assistance to an element of the intelligence community that is brought
in a State court shall be deemed to arise under the Constitution and
laws of the United States and shall be removable under section 1441 of
title 28, United States Code.
``(h) Relationship to Other Laws.--Nothing in this section shall be
construed to limit any otherwise available immunity, privilege, or
defense under any other provision of law.
``(i) Applicability.--This section shall apply to a civil action
pending on or filed after the date of the enactment of the FISA
Amendments Act of 2008.
``SEC. 803. PREEMPTION.
``(a) In General.--No State shall have authority to--
``(1) conduct an investigation into an electronic communication
service provider's alleged assistance to an element of the
intelligence community;
``(2) require through regulation or any other means the
disclosure of information about an electronic communication service
provider's alleged assistance to an element of the intelligence
community;
``(3) impose any administrative sanction on an electronic
communication service provider for assistance to an element of the
intelligence community; or
``(4) commence or maintain a civil action or other proceeding
to enforce a requirement that an electronic communication service
provider disclose information concerning alleged assistance to an
element of the intelligence community.
``(b) Suits by the United States.--The United States may bring suit
to enforce the provisions of this section.
``(c) Jurisdiction.--The district courts of the United States shall
have jurisdiction over any civil action brought by the United States to
enforce the provisions of this section.
``(d) Application.--This section shall apply to any investigation,
action, or proceeding that is pending on or commenced after the date of
the enactment of the FISA Amendments Act of 2008.
``SEC. 804. REPORTING.
``(a) Semiannual Report.--Not less frequently than once every 6
months, the Attorney General shall, in a manner consistent with
national security, the Rules of the House of Representatives, the
Standing Rules of the Senate, and Senate Resolution 400 of the 94th
Congress or any successor Senate resolution, fully inform the
congressional intelligence committees, the Committee on the Judiciary
of the Senate, and the Committee on the Judiciary of the House of
Representatives concerning the implementation of this title.
``(b) Content.--Each report made under subsection (a) shall
include--
``(1) any certifications made under section 802;
``(2) a description of the judicial review of the
certifications made under section 802; and
``(3) any actions taken to enforce the provisions of section
803.''.

353f5a337285e0f425c27c6a5154bf2e72b98581331af0d0520ed87c1196e445

The table of contents in the first section of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), as
amended by section 101(b), is further amended by adding at the end the
following:
``TITLE VIII--PROTECTION OF PERSONS ASSISTING THE GOVERNMENT
``Sec. 801. Definitions.
``Sec. 802. Procedures for implementing statutory defenses.
``Sec. 803. Preemption.
``Sec. 804. Reporting.''.

8a39dff586646c5e1701b91741614d0baad64e44fe2c7a6bc919a1a9fce70454

(a) Definitions.--In this section:
(1) Appropriate committees of congress.--The term ``appropriate
committees of Congress'' means--
(A) the Select Committee on Intelligence and the Committee
on the Judiciary of the Senate; and
(B) the Permanent Select Committee on Intelligence and the
Committee on the Judiciary of the House of Representatives.
(2) Foreign intelligence surveillance court.--The term
``Foreign Intelligence Surveillance Court'' means the court
established under section 103(a) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1803(a)).
(3) President's surveillance program and program.--The terms
``President's Surveillance Program'' and ``Program'' mean the
intelligence activity involving communications that was authorized
by the President during the period beginning on September 11, 2001,
and ending on January 17, 2007, including the program referred to
by the President in a radio address on December 17, 2005 (commonly
known as the Terrorist Surveillance Program).
(b) Reviews.--
(1) Requirement to conduct.--The Inspectors General of the
Department of Justice, the Office of the Director of National
Intelligence, the National Security Agency, the Department of
Defense, and any other element of the intelligence community that
participated in the President's Surveillance Program, shall
complete a comprehensive review of, with respect to the oversight
authority and responsibility of each such Inspector General--
(A) all of the facts necessary to describe the
establishment, implementation, product, and use of the product
of the Program;
(B) access to legal reviews of the Program and access to
information about the Program;
(C) communications with, and participation of, individuals
and entities in the private sector related to the Program;
(D) interaction with the Foreign Intelligence Surveillance
Court and transition to court orders related to the Program;
and
(E) any other matters identified by any such Inspector
General that would enable that Inspector General to complete a
review of the Program, with respect to such Department or
element.
(2) Cooperation and coordination.--
(A) Cooperation.--Each Inspector General required to
conduct a review under paragraph (1) shall--
(i) work in conjunction, to the extent practicable,
with any other Inspector General required to conduct such a
review; and
(ii) utilize, to the extent practicable, and not
unnecessarily duplicate or delay, such reviews or audits
that have been completed or are being undertaken by any
such Inspector General or by any other office of the
Executive Branch related to the Program.
(B) Integration of other reviews.--The Counsel of the
Office of Professional Responsibility of the Department of
Justice shall provide the report of any investigation conducted
by such Office on matters relating to the Program, including
any investigation of the process through which legal reviews of
the Program were conducted and the substance of such reviews,
to the Inspector General of the Department of Justice, who
shall integrate the factual findings and conclusions of such
investigation into its review.
(C) Coordination.--The Inspectors General shall designate
one of the Inspectors General required to conduct a review
under paragraph (1) that is appointed by the President, by and
with the advice and consent of the Senate, to coordinate the
conduct of the reviews and the preparation of the reports.
(c) Reports.--
(1) Preliminary reports.--Not later than 60 days after the date
of the enactment of this Act, the Inspectors General of the
Department of Justice, the Office of the Director of National
Intelligence, the National Security Agency, the Department of
Defense, and any other Inspector General required to conduct a
review under subsection (b)(1), shall submit to the appropriate
committees of Congress an interim report that describes the planned
scope of such review.
(2) Final report.--Not later than 1 year after the date of the
enactment of this Act, the Inspectors General of the Department of
Justice, the Office of the Director of National Intelligence, the
National Security Agency, the Department of Defense, and any other
Inspector General required to conduct a review under subsection
(b)(1), shall submit to the appropriate committees of Congress, in
a manner consistent with national security, a comprehensive report
on such reviews that includes any recommendations of any such
Inspectors General within the oversight authority and
responsibility of any such Inspector General with respect to the
reviews.
(3) Form.--A report under this subsection shall be submitted in
unclassified form, but may include a classified annex. The
unclassified report shall not disclose the name or identity of any
individual or entity of the private sector that participated in the
Program or with whom there was communication about the Program, to
the extent that information is classified.
(d) Resources.--
(1) Expedited security clearance.--The Director of National
Intelligence shall ensure that the process for the investigation
and adjudication of an application by an Inspector General or any
appropriate staff of an Inspector General for a security clearance
necessary for the conduct of the review under subsection (b)(1) is
carried out as expeditiously as possible.
(2) Additional personnel for the inspectors general.--An
Inspector General required to conduct a review under subsection
(b)(1) and submit a report under subsection (c) is authorized to
hire such additional personnel as may be necessary to carry out
such review and prepare such report in a prompt and timely manner.
Personnel authorized to be hired under this paragraph--
(A) shall perform such duties relating to such a review as
the relevant Inspector General shall direct; and
(B) are in addition to any other personnel authorized by
law.
(3) Transfer of personnel.--The Attorney General, the Secretary
of Defense, the Director of National Intelligence, the Director of
the National Security Agency, or the head of any other element of
the intelligence community may transfer personnel to the relevant
Office of the Inspector General required to conduct a review under
subsection (b)(1) and submit a report under subsection (c) and, in
addition to any other personnel authorized by law, are authorized
to fill any vacancy caused by such a transfer. Personnel
transferred under this paragraph shall perform such duties relating
to such review as the relevant Inspector General shall direct.

aaa5e35db9c994cdae103a7a4efb1782b39250f428c8c90a858b1c5d05edc2ec

TITLE III

-REVIEW OF PREVIOUS ACTIONS

If any provision of this Act, any amendment made by this Act, or
the application thereof to any person or circumstances is held invalid,
the validity of the remainder of the Act, of any such amendments, and
of the application of such provisions to other persons and
circumstances shall not be affected thereby.

7f168a6f126dd3bdd18dbeabc4e20b7792c76862b372fdf9a5d60f2d82f38109

TITLE IV

-OTHER PROVISIONS

Except as provided in section 404, the amendments made by this Act
shall take effect on the date of the enactment of this Act.

d024237164a396053c928d5d294af7fa5cfaf5f9f3aa50aa5950f55ccd659797

(a) Repeal of Protect America Act of 2007 Provisions.--
(1) Amendments to fisa.--
(A) In general.--Except as provided in section 404,
sections 105A, 105B, and 105C of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1805a, 1805b, and 1805c)
are repealed.
(B) Technical and conforming amendments.--
(i) 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 striking the
items relating to sections 105A, 105B, and 105C.
(ii) Conforming amendments.--Except as provided in
section 404, section 103(e) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1803(e)) is amended--
(I) in paragraph (1), by striking ``105B(h) or
501(f)(1)'' and inserting ``501(f)(1) or 702(h)(4)'';
and
(II) in paragraph (2), by striking ``105B(h) or
501(f)(1)'' and inserting ``501(f)(1) or 702(h)(4)''.
(2) Reporting requirements.--Except as provided in section 404,
section 4 of the Protect America Act of 2007 (Public Law 110-55;
121 Stat. 555) is repealed.
(3) Transition procedures.--Except as provided in section 404,
subsection (b) of section 6 of the Protect America Act of 2007
(Public Law 110-55; 121 Stat. 556) is repealed.
(b) FISA Amendments Act of 2008.--
(1) In general.--Except as provided in section 404, effective
December 31, 2012, title VII of the Foreign Intelligence
Surveillance Act of 1978, as amended by section 101(a), is
repealed.
(2) Technical and conforming amendments.--Effective December
31, 2012--
(A) the table of contents in the first section of such Act
(50 U.S.C. 1801 et seq.) is amended by striking the items
related to title VII;
(B) except as provided in section 404, section 601(a)(1) of
such Act (50 U.S.C. 1871(a)(1)) is amended to read as such
section read on the day before the date of the enactment of
this Act; and
(C) except as provided in section 404, section
2511(2)(a)(ii)(A) of title 18, United States Code, is amended
by striking ``or a court order pursuant to section 704 of the
Foreign Intelligence Surveillance Act of 1978''.

b0f6c2ff14556d09c55661429fb5384193b9c95418d06932fd6f0f3d2c23e18f

(a) Transition Procedures for Protect America Act of 2007
Provisions.--
(1) Continued effect of orders, authorizations, directives.--
Except as provided in paragraph (7), notwithstanding any other
provision of law, any order, authorization, or directive issued or
made pursuant to section 105B of the Foreign Intelligence
Surveillance Act of 1978, as added by section 2 of the Protect
America Act of 2007 (Public Law 110-55; 121 Stat. 552), shall
continue in effect until the expiration of such order,
authorization, or directive.
(2) Applicability of protect america act of 2007 to continued
orders, authorizations, directives.--Notwithstanding any other
provision of this Act, any amendment made by this Act, or the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.)--
(A) subject to paragraph (3), section 105A of such Act, as
added by section 2 of the Protect America Act of 2007 (Public
Law 110-55; 121 Stat. 552), shall continue to apply to any
acquisition conducted pursuant to an order, authorization, or
directive referred to in paragraph (1); and
(B) sections 105B and 105C of the Foreign Intelligence
Surveillance Act of 1978, as added by sections 2 and 3,
respectively, of the Protect America Act of 2007, shall
continue to apply with respect to an order, authorization, or
directive referred to in paragraph (1) until the later of--
(i) the expiration of such order, authorization, or
directive; or
(ii) the date on which final judgment is entered for
any petition or other litigation relating to such order,
authorization, or directive.
(3) Use of information.--Information acquired from an
acquisition conducted pursuant to an order, authorization, or
directive referred to in paragraph (1) shall be deemed to be
information acquired from an electronic surveillance pursuant to
title I of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.) for purposes of section 106 of such Act (50
U.S.C. 1806), except for purposes of subsection (j) of such
section.
(4) Protection from liability.--Subsection (l) of section 105B
of the Foreign Intelligence Surveillance Act of 1978, as added by
section 2 of the Protect America Act of 2007, shall continue to
apply with respect to any directives issued pursuant to such
section 105B.
(5) Jurisdiction of foreign intelligence surveillance court.--
Notwithstanding any other provision of this Act or of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.),
section 103(e) of the Foreign Intelligence Surveillance Act (50
U.S.C. 1803(e)), as amended by section 5(a) of the Protect America
Act of 2007 (Public Law 110-55; 121 Stat. 556), shall continue to
apply with respect to a directive issued pursuant to section 105B
of the Foreign Intelligence Surveillance Act of 1978, as added by
section 2 of the Protect America Act of 2007, until the later of--
(A) the expiration of all orders, authorizations, or
directives referred to in paragraph (1); or
(B) the date on which final judgment is entered for any
petition or other litigation relating to such order,
authorization, or directive.
(6) Reporting requirements.--
(A) Continued applicability.--Notwithstanding any other
provision of this Act, any amendment made by this Act, the
Protect America Act of 2007 (Public Law 110-55), or the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.),
section 4 of the Protect America Act of 2007 shall continue to
apply until the date that the certification described in
subparagraph (B) is submitted.
(B) Certification.--The certification described in this
subparagraph is a certification--
(i) made by the Attorney General;
(ii) submitted as part of a semi-annual report required
by section 4 of the Protect America Act of 2007;
(iii) that states that there will be no further
acquisitions carried out under section 105B of the Foreign
Intelligence Surveillance Act of 1978, as added by section
2 of the Protect America Act of 2007, after the date of
such certification; and
(iv) that states that the information required to be
included under such section 4 relating to any acquisition
conducted under such section 105B has been included in a
semi-annual report required by such section 4.
(7) Replacement of orders, authorizations, and directives.--
(A) In general.--If the Attorney General and the Director
of National Intelligence seek to replace an authorization
issued pursuant to section 105B of the Foreign Intelligence
Surveillance Act of 1978, as added by section 2 of the Protect
America Act of 2007 (Public Law 110-55), with an authorization
under section 702 of the Foreign Intelligence Surveillance Act
of 1978 (as added by section 101(a) of this Act), the Attorney
General and the Director of National Intelligence shall, to the
extent practicable, submit to the Foreign Intelligence
Surveillance Court (as such term is defined in section
701(b)(2) of such Act (as so added)) a certification prepared
in accordance with subsection (g) of such section 702 and the
procedures adopted in accordance with subsections (d) and (e)
of such section 702 at least 30 days before the expiration of
such authorization.
(B) Continuation of existing orders.--If the Attorney
General and the Director of National Intelligence seek to
replace an authorization made pursuant to section 105B of the
Foreign Intelligence Surveillance Act of 1978, as added by
section 2 of the Protect America Act of 2007 (Public Law 110-
55; 121 Stat. 522), by filing a certification in accordance
with subparagraph (A), that authorization, and any directives
issued thereunder and any order related thereto, shall remain
in effect, notwithstanding the expiration provided for in
subsection (a) of such section 105B, until the Foreign
Intelligence Surveillance Court (as such term is defined in
section 701(b)(2) of the Foreign Intelligence Surveillance Act
of 1978 (as so added)) issues an order with respect to that
certification under section 702(i)(3) of such Act (as so added)
at which time the provisions of that section and of section
702(i)(4) of such Act (as so added) shall apply.
(8) Effective date.--Paragraphs (1) through (7) shall take
effect as if enacted on August 5, 2007.
(b) Transition Procedures for FISA Amendments Act of 2008
Provisions.--
(1) Orders in effect on december 31, 2012.--Notwithstanding any
other provision of this Act, any amendment made by this Act, or the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.), any order, authorization, or directive issued or made under
title VII of the Foreign Intelligence Surveillance Act of 1978, as
amended by section 101(a), shall continue in effect until the date
of the expiration of such order, authorization, or directive.
(2) Applicability of title vii of fisa to continued orders,
authorizations, directives.--Notwithstanding any other provision of
this Act, any amendment made by this Act, or the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.),
with respect to any order, authorization, or directive referred to
in paragraph (1), title VII of such Act, as amended by section
101(a), shall continue to apply until the later of--
(A) the expiration of such order, authorization, or
directive; or
(B) the date on which final judgment is entered for any
petition or other litigation relating to such order,
authorization, or directive.
(3) Challenge of directives; protection from liability; use of
information.--Notwithstanding any other provision of this Act or of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801
et seq.)--
(A) section 103(e) of such Act, as amended by section
403(a)(1)(B)(ii), shall continue to apply with respect to any
directive issued pursuant to section 702(h) of such Act, as
added by section 101(a);
(B) section 702(h)(3) of such Act (as so added) shall
continue to apply with respect to any directive issued pursuant
to section 702(h) of such Act (as so added);
(C) section 703(e) of such Act (as so added) shall continue
to apply with respect to an order or request for emergency
assistance under that section;
(D) section 706 of such Act (as so added) shall continue to
apply to an acquisition conducted under section 702 or 703 of
such Act (as so added); and
(E) section 2511(2)(a)(ii)(A) of title 18, United States
Code, as amended by section 101(c)(1), shall continue to apply
to an order issued pursuant to section 704 of the Foreign
Intelligence Surveillance Act of 1978, as added by section
101(a).
(4) Reporting requirements.--
(A) Continued applicability.--Notwithstanding any other
provision of this Act or of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), section
601(a) of such Act (50 U.S.C. 1871(a)), as amended by section
101(c)(2), and sections 702(l) and 707 of such Act, as added by
section 101(a), shall continue to apply until the date that the
certification described in subparagraph (B) is submitted.
(B) Certification.--The certification described in this
subparagraph is a certification--
(i) made by the Attorney General;
(ii) submitted to the Select Committee on Intelligence
of the Senate, the Permanent Select Committee on
Intelligence of the House of Representatives, and the
Committees on the Judiciary of the Senate and the House of
Representatives;
(iii) that states that there will be no further
acquisitions carried out under title VII of the Foreign
Intelligence Surveillance Act of 1978, as amended by
section 101(a), after the date of such certification; and
(iv) that states that the information required to be
included in a review, assessment, or report under section
601 of such Act, as amended by section 101(c), or section
702(l) or 707 of such Act, as added by section 101(a),
relating to any acquisition conducted under title VII of
such Act, as amended by section 101(a), has been included
in a review, assessment, or report under such section 601,
702(l), or 707.
(5) Transition procedures concerning the targeting of united
states persons overseas.--Any authorization in effect on the date
of enactment of this Act under section 2.5 of Executive Order 12333
to intentionally target a United States person reasonably believed
to be located outside the United States shall continue in effect,
and shall constitute a sufficient basis for conducting such an
acquisition targeting a United States person located outside the
United States until the earlier of--
(A) the date that authorization expires; or
(B) the date that is 90 days after the date of the
enactment of this Act.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.

4fcba27c70e4db895c01f55276e85db45cc6ee7e97a4ab1e22bd1b31e14af381

FISA Amendments Act of 2008 — HR. 6304

Other Sections

TITLE I

TITLE II

TITLE III

TITLE IV

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