To provide for the substitution of the United States in certain civil actions.

SA 3927. Mr. SPECTER (for himself and Mr. Whitehouse) submitted an
amendment intended to be proposed to amendment SA 3911 proposed by Mr.
Rockefeller (for himself and Mr. Bond) 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 75, line 5, 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)).

SEC. 202. SUBSTITUTION OF THE UNITED STATES IN CERTAIN
ACTIONS.

(a) In General.--
(1) Certification.--Notwithstanding any other provision of
law, a Federal or State court shall substitute the United
States for an electronic communication service provider with
respect to any claim in a covered civil action as provided in
this subsection, if the Attorney General certifies to that
court that--
(A) with respect to that claim, the assistance alleged to
have been provided by the electronic communication service
provider was--
(i) provided 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) Substitution.--
(A) In general.--Except as provided in subparagraph (B),
and subject to subparagraph (C), upon receiving a
certification under paragraph (1), a Federal or State court
shall--
(i) substitute the United States for the electronic
communication service provider

[[Page S337]]

as the defendant as to all claims designated by the Attorney
General in that certification, consistent with the procedures
under rule 25(c) of the Federal Rules of Civil Procedure, as
if the United States were a party to whom the interest of the
electronic communication service provider in the litigation
had been transferred; and
(ii) as to that electronic communication service provider--

(I) dismiss all claims designated by the Attorney General
in that certification; and
(II) enter a final judgment relating to those claims.

(B) Continuation of certain claims.--If a certification by
the Attorney General under paragraph (1) states that not all
of the alleged assistance was provided under a written
request or directive described in paragraph (1)(A)(ii), the
electronic communication service provider shall remain as a
defendant.
(C) Determination.--
(i) In general.--Substitution under subparagraph (A) shall
proceed only after a determination by the Foreign
Intelligence Surveillance Court 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 by the electronic communication service provider
acting in good faith and pursuant to an objectively
reasonable belief 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.

(ii) Certification.--If the Attorney General submits a
certification under paragraph (1), the court to which that
certification is submitted shall--

(I) immediately certify the questions described in clause
(i) to the Foreign Intelligence Surveillance Court; and
(II) stay further proceedings in the relevant litigation,
pending the determination of the Foreign Intelligence
Surveillance Court.

(iii) Participation of parties.--In reviewing a
certification and making a determination under clause (i),
the Foreign Intelligence Surveillance Court shall 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).
(iv) Declarations.--If the Attorney General files a
declaration under section 1746 of title 28, United States
Code, that disclosure of a determination made pursuant to
clause (i) would harm the national security of the United
States, the Foreign Intelligence Surveillance Court shall
limit any public disclosure concerning such determination,
including any public order following such an ex parte review,
to a statement that the conditions of clause (i) have or have
not been met, without disclosing the basis for the
determination.
(3) Procedures.--
(A) Tort claims.--Upon a substitution under paragraph (2),
for any tort claim--
(i) the claim shall be deemed to have been filed under
section 1346(b) of title 28, United States Code, except that
sections 2401(b), 2675, and 2680(a) of title 28, United
States Code, shall not apply; and
(ii) the claim shall be deemed timely filed against the
United States if it was timely filed against the electronic
communication service provider.
(B) Constitutional and statutory claims.--Upon a
substitution under paragraph (2), for any claim under the
Constitution of the United States or any Federal statute--
(i) the claim shall be deemed to have been filed against
the United States under section 1331 of title 28, United
States Code;
(ii) with respect to any claim under a Federal statute that
does not provide a cause of action against the United States,
the plaintiff shall be permitted to amend such claim to
substitute, as appropriate, a cause of action under--

(I) section 704 of title 5, United States Code (commonly
known as the Administrative Procedure Act);
(II) section 2712 of title 18, United States Code; or
(III) section 110 of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1810);

(iii) the statutes of limitation applicable to the causes
of action identified in clause (ii) shall not apply to any
amended claim under that clause, and any such cause of action
shall be deemed timely filed if any Federal statutory cause
of action against the electronic communication service
provider was timely filed; and
(iv) for any amended claim under clause (ii) the United
States shall be deemed a proper defendant under any statutes
described in that clause, and any plaintiff that had standing
to proceed against the original defendant shall be deemed an
aggrieved party for purposes of proceeding under section 2712
of title 18, United States Code, or section 110 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1810).
(C) Discovery.--
(i) In general.--In a covered civil action in which the
United States is substituted as party-defendant under
paragraph (2), any plaintiff may serve third-party discovery
requests to any electronic communications service provider as
to which all claims are dismissed.
(ii) Binding the government.--If a plaintiff in a covered
civil action serves deposition notices under rule 30(b)(6) of
the Federal Rules of Civil Procedure or requests under rule
36 of the Federal Rules of Civil Procedure for admission upon
an electronic communications service provider as to which all
claims were dismissed, the electronic communications service
provider shall be deemed a party-defendant for purposes rule
30(b)(6) or rule 36 and its answers and admissions shall be
deemed binding upon the Government.
(b) Certifications.--
(1) In general.--For purposes of substitution proceedings
under this section--
(A) a certification under subsection (a) may be provided
and reviewed in camera, ex parte, and under seal; and
(B) for any certification provided and reviewed as
described in subparagraph (A), the court shall not disclose
or cause the disclosure of its contents.
(2) Nondelegation.--The authority and duties of the
Attorney General under this section shall be performed by the
Attorney General or a designee in a position not lower than
the Deputy Attorney General.
(c) Sovereign Immunity.--This section, including any
Federal statute cited in this section that operates as a
waiver of sovereign immunity, constitute the sole waiver of
sovereign immunity with respect to any covered civil action.
(d) Civil Actions in State Court.--For purposes of section
1441 of title 28, United States Code, any covered civil
action that is brought in a State court or administrative or
regulatory bodies shall be deemed to arise under the
Constitution or laws of the United States and shall be
removable under that section.
(e) Rule of Construction.--Except as expressly provided in
this section, nothing in this section may be construed to
limit any immunity, privilege, or defense under any other
provision of law, including any privilege, immunity, or
defense that would otherwise have been available to the
United States absent its substitution as party-defendant or
had the United States been the named defendant.
(f) Effective Date and Application.--This section shall
apply to any covered civil action pending on or filed after
the date of enactment of this Act.
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