[Congressional Record: August 1, 2007 (Senate)]
[Page S10619-S10621]
                    

 
          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

                      
      By Mr. McCONNELL (for himself and Mr. Bond):
  S. 1927. A bill to amend the Foreign Intelligence Surveillance Act of 
1978 to provide additional procedures for authorizing certain 
acquisitions of foreign intelligence information and for other 
purposes; read the first time.
  Mr. McCONNELL. I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                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.

[[Page S10620]]

     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 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

[[Page S10621]]

     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.
                                 ______