S.Amdt. 3866

SA 3866. Mr. SCHUMER submitted an amendment intended to be proposed
by him 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 43, after line 21, add the following:

SEC. 111. STANDING AND CAUSE OF ACTION FOR PERSONS WHO
REFRAIN FROM COMMUNICATIONS BY REASON OF FEAR
OF ELECTRONIC SURVEILLANCE.

(a) Standing and Cause of Action.--A United States citizen
shall have standing to bring a cause of action for damages
(as specified in subsection (d)) or declaratory or injunctive
relief against the United States if that individual has
refrained or is refraining

[[Page S15776]]

from communications because of a reasonable fear that such
communications would be the subject of electronic
surveillance conducted without an order issued in accordance
with title I of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1801 et seq.) or a joint authorization by the
Attorney General and the Director of National Intelligence
issued in accordance with title VII of the Foreign
Intelligence Surveillance Act of 1978, as added by this Act,
under a claim of Presidential authority under either the
Constitution of the United States or the Authorization for
Use of Military Force (Public Law 107-40; 115 Stat. 224; 50
U.S.C. 1541 note).
(b) Rules Applicable to Actions.--In any civil action filed
under subsection (a), the following shall apply:
(1) The action shall be filed in the United States District
Court for the District of Columbia and shall be heard by a 3-
judge court convened under section 2284 of title 28, United
States Code.
(2) A copy of the complaint shall be delivered promptly to
the Attorney General, the Clerk of the House of
Representatives, and the Secretary of the Senate.
(3) A reasonable fear that communications will be the
subject of electronic surveillance may be established by
evidence that the person bringing the action--
(A) has had and intends to continue to have regular
communications from the United States to one or more persons
in Afghanistan, Iraq, Pakistan, or any country designated as
a state sponsor of terrorism in the course of that person's
paid employment doing journalistic, academic, or other
research pertaining to terrorism or terrorist groups; or
(B) has engaged and intends to continue to engage in one or
more commercial transactions with a bank or other financial
institution in a country described in subparagraph (A).
(4) The procedures and standards of the Classified
Information Procedures Act (18 U.S.C. App.) shall apply to
the action.
(5) A final decision in the action shall be reviewable only
by appeal directly to the Supreme Court of the United States.
Such appeal shall be taken by the filing of a notice of
appeal within 10 days, and the filing of a jurisdictional
statement within 30 days, after the entry of the final
decision.
(6) It shall be the duty of the United States District
Court for the District of Columbia and the Supreme Court of
the United States to advance on the docket and to expedite to
the greatest possible extent the disposition of the action
and appeal.
(c) Mootness.--In any civil action filed under subsection
(a) for declaratory or injunctive relief, a defendant's claim
that the surveillance activity has been terminated may not be
grounds for dismissing the case, unless the Attorney General
files a declaration under section 1746 of title 28, United
States Code, affirming that--
(1) the surveillance described in subsection (a) has
ceased; and
(2) the executive branch of the Federal Government does not
have legal authority to renew the surveillance described in
subsection (a).
(d) Limitation of Damages.--In any civil action filed under
subsection (a), a prevailing plaintiff shall recover--
(1) damages for injuries arising from a reasonable fear
caused by the electronic surveillance described in subsection
(a) of not less than $50 and not more than $1000; and
(2) reasonable attorney's fees and other investigation and
litigation costs reasonably incurred relating to that civil
action.
(e) Severability.--If any provision of this section, or the
application thereof to any person or circumstances is held
invalid, the validity of the remainder of the Act, any such
amendments, and of the application of such provisions to
other persons and circumstances shall not be affected
thereby.
(f) Rules of Construction.--Nothing in this section may be
construed to--
(1) affect a cause of action filed before the date of
enactment of this Act;
(2) limit any cause of action available to a person under
any other provision of law, including the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.); or
(3) limit the relief that may be awarded under any other
provision of law, including the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).
(g) Definition.--In this section, the term ``electronic
surveillance'' has the meaning given that term in section 101
of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801).
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