S.Amdt. 3858

SA 3858. Mrs. FEINSTEIN (for herself and Mr. Nelson of Florida)
submitted an amendment intended to be proposed by her to the bill S.
2248, to amend the Foreign Intelligence Surveillance Act of 1978, to
modernize and streamline the provisions of that Act, and for other
purposes; which was ordered to lie on the table; as follows:

On page 46, strike line 5 and all that follows through page
47, line 16, and insert the following:
(6) 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)).

[[Page S15773]]

SEC. 202. LIMITATIONS ON CIVIL ACTIONS FOR ELECTRONIC
COMMUNICATION SERVICE PROVIDERS.

(a) Limitations.--
(1) In general.--Notwithstanding any other provision of
law, and subject to paragraph (2), a covered civil action
shall not lie or be maintained in a Federal or State court,
and shall be promptly dismissed, if the Attorney General
certifies to the court that--
(A) the assistance alleged to have been provided by the
electronic communication service provider was--
(i) 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

(ii) described in a written request or directive 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

(B) the electronic communication service provider did not
provide the alleged assistance.
(2) Determination.--
(A) In general.--The dismissal of a covered civil action
under paragraph (1) shall proceed only if, after review, the
Foreign Intelligence Surveillance Court determines that--
(i) the written request or directive 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 under paragraph (1)(A)(ii)
complied with section 2511(2)(a)(ii)(B) of title 18, United
States Code;
(ii) the assistance alleged to have been provided was
undertaken in good faith by the electronic communication
service provider pursuant to a demonstrable reason to believe
that compliance with the written request or directive under
paragraph (1)(A)(ii) was permitted by law; or
(iii) the electronic communication service provider did not
provide the alleged assistance.
(B) Procedures.--In reviewing certifications and making
determinations under subparagraph (A), the Foreign
Intelligence Surveillance Court shall--
(i) review and make any such determination en banc; and
(ii) permit any plaintiff and any defendant in the
applicable covered civil action to appear before the Foreign
Intelligence Surveillance Court--

(I) pursuant to section 103 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1803); and
(II) as necessary to serve justice.

(C) Certification.--If the Attorney General submits a
certification under paragraph (1), the court to which that
certification is submitted shall--
(i) immediately transfer the matter to the Foreign
Intelligence Surveillance Court for a determination regarding
the questions described in subparagraph (A); and
(ii) stay further proceedings in the relevant litigation,
pending the determination of the Foreign Intelligence
Surveillance Court.
______