To provide for the review of certifications by the Foreign Intelligence Surveillance Court.

SA 3919. Mrs. FEINSTEIN (for herself, Mr. Nelson of Florida, and Mr.
Cardin) 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 72, strike line 13 and all that follows through
page 73, line 25, 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)).
(7) Foreign intelligence surveillance court of review.--The
term ``Foreign Intelligence Surveillance Court of Review''
means the court of review established under section 103(b) of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1803(b)).

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 (3), 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) Submission of certification.--If the Attorney General
submits a certification under paragraph (1), the court to
which that certification is submitted shall--
(A) immediately transfer the matter to the Foreign
Intelligence Surveillance Court for a determination regarding
the questions described in paragraph (3)(A); and
(B) stay further proceedings in the relevant litigation,
pending the determination of the Foreign Intelligence
Surveillance Court.
(3) 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) of title 18, United
States Code, and the assistance alleged to have been provided
was provided in accordance with the terms of that written
request or directive;
(ii) subject to subparagraph (C), the assistance alleged to
have been provided was undertaken based on the good faith
reliance of the electronic communication service provider on
the written request or directive under paragraph (1)(A)(ii),
such that the electronic communication service provider had
an objectively reasonable belief under the circumstances that
compliance with the written request or directive was lawful;
or
(iii) the electronic communication service provider did not
provide the alleged assistance.
(B) Procedures.--
(i) In general.--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 pursuant to section 103 of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1803).

(ii) Appeal to foreign intelligence surveillance court of
review.--A party to a proceeding described in clause (i) may
appeal a determination under subparagraph (A) to the Foreign
Intelligence Surveillance Court of Review, which shall have
jurisdiction to review such determination.
(iii) Certiorari to the supreme court.--A party to an
appeal under clause (ii) may file a petition for a writ of
certiorari for review of a decision of the Foreign
Intelligence Surveillance Court of Review issued under that
clause. The record for such review shall be transmitted under
seal to the Supreme Court of the United States, which shall
have jurisdiction to review such decision.
(iv) State secrets.--The state secrets privilege shall not
apply in any proceeding under this paragraph.
(C) Scope of good faith limitation.--The limitation on
covered civil actions based on good faith reliance under
subparagraph (A)(ii) shall only apply in a civil action
relating to alleged assistance provided on or before January
17, 2007.
______