S.Amdt. 3948

SA 3948. Mr. BOND 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:

Strike all after page 1, line 7 and insert the following:

TITLE I--EXTENSION OF THE PROTECT AMERICA ACT OF 2007

SEC. 101. EXTENSION OF THE PROTECT AMERICA ACT OF 2007.

Section 6 of the Protect America Act of 2007 (Public Law
110-55; 121 Stat. 557; 50 U.S.C. 1803 note) is amended by
striking subsection (c).

TITLE II--PROTECTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS

SEC. 201. DEFINITIONS.

In this title:
(1) Assistance.--The term ``assistance'' means the
provision of, or the provision of access to, information
(including communication contents, communications records, or
other information relating to a customer or communication),
facilities, or another form of assistance.
(2) Contents.--The term ``contents'' has the meaning given
that term in section 101(n) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801(n)).
(3) Covered civil action.--The term ``covered civil
action'' means a civil action filed in a Federal or State
court that--
(A) alleges that an electronic communication service
provider furnished assistance to an element of the
intelligence community; and
(B) seeks monetary or other relief from the electronic
communication service provider related to the provision of
such assistance.
(4) Electronic communication service provider.--The term
``electronic communication service provider'' means--
(A) a telecommunications carrier, as that term is defined
in section 3 of the Communications Act of 1934 (47 U.S.C.
153);
(B) a provider of an electronic communication service, as
that term is defined in section 2510 of title 18, United
States Code;
(C) a provider of a remote computing service, as that term
is defined in section 2711 of title 18, United States Code;
(D) any other communication service provider who has access
to wire or electronic communications either as such
communications are transmitted or as such communications are
stored;
(E) a parent, subsidiary, affiliate, successor, or assignee
of an entity described in subparagraph (A), (B), (C), or (D);
or
(F) an officer, employee, or agent of an entity described
in subparagraph (A), (B), (C), (D), or (E).
(5) Element of the intelligence community.--The term
``element of the intelligence community'' means an element of
the intelligence community specified in or designated under
section 3(4) of the National Security Act of 1947 (50 U.S.C.
401a(4)).

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

(a) Limitations.--
(1) In general.--Notwithstanding any other provision of
law, 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) Review.--A certification made pursuant to paragraph (1)
shall be subject to review by a court for abuse of
discretion.
(b) Review of Certifications.--If the Attorney General
files a declaration under section 1746 of title 28, United
States Code, that disclosure of a certification made pursuant
to subsection (a) would harm the national security of the
United States, the court shall--
(1) review such certification in camera and ex parte; and
(2) limit any public disclosure concerning such
certification, including any public order following such an
ex parte review, to a statement that the conditions of
subsection (a) have been met, without disclosing the
subparagraph of subsection (a)(1) that is the basis for the
certification.
(c) Nondelegation.--The authority and duties of the
Attorney General under this section shall be performed by the
Attorney General (or Acting Attorney General) or a designee
in a position not lower than the Deputy Attorney General.
(d) Civil Actions in State Court.--A covered civil action
that is brought in a State court shall be deemed to arise
under the Constitution and laws of the United States and
shall be removable under section 1441 of title 28, United
States Code.
(e) Rule of Construction.--Nothing in this section may be
construed to limit any otherwise available immunity,
privilege, or defense under any other provision of law.
(f) Effective Date and Application.--This section shall
apply to any covered civil action that is pending on or filed
after the date of enactment of this Act.

SEC. 203. PROCEDURES FOR IMPLEMENTING STATUTORY DEFENSES
UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT
OF 1978.

The Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.) is amended by adding after title VII the
following new title:

``TITLE VIII--PROTECTION OF PERSONS ASSISTING THE GOVERNMENT

``SEC. 801. DEFINITIONS.

``In this title:
``(1) Assistance.--The term `assistance' means the
provision of, or the provision of access to, information
(including communication contents, communications records, or
other information relating to a customer or communication),
facilities, or another form of assistance.
``(2) Attorney general.--The term `Attorney General' has
the meaning give that term in section 101(g).
``(3) Contents.--The term `contents' has the meaning given
that term in section 101(n).
``(4) Electronic communication service provider.--The term
`electronic communication service provider' means--
``(A) a telecommunications carrier, as that term is defined
in section 3 of the Communications Act of 1934 (47 U.S.C.
153);
``(B) a provider of electronic communications service, as
that term is defined in section 2510 of title 18, United
States Code;
``(C) a provider of a remote computing service, as that
term is defined in section 2711 of title 18, United States
Code;
``(D) any other communication service provider who has
access to wire or electronic communications either as such
communications are transmitted or as such communications are
stored;
``(E) a parent, subsidiary, affiliate, successor, or
assignee of an entity described in subparagraph (A), (B),
(C), or (D); or
``(F) an officer, employee, or agent of an entity described
in subparagraph (A), (B), (C), (D), or (E).
``(5) Element of the intelligence community.--The term
`element of the intelligence community' means an element of
the intelligence community as specified or designated under
section 3(4) of the National Security Act of 1947 (50 U.S.C.
401a(4)).
``(6) Person.--The term `person' means--
``(A) an electronic communication service provider; or
``(B) a landlord, custodian, or other person who may be
authorized or required to furnish assistance pursuant to--
``(i) an order of the court established under section
103(a) directing such assistance;
``(ii) a certification in writing under section
2511(2)(a)(ii)(B) or 2709(b) of title 18, United States Code;
or

[[Page S366]]

``(iii) a directive under section 102(a)(4), 105B(e), as in
effect on the day before the date of the enactment of the
FISA Amendments Act of 2007 or 703(h).
``(7) State.--The term `State' means any State, political
subdivision of a State, the Commonwealth of Puerto Rico, the
District of Columbia, and any territory or possession of the
United States, and includes any officer, public utility
commission, or other body authorized to regulate an
electronic communication service provider.

``SEC. 802. PROCEDURES FOR IMPLEMENTING STATUTORY DEFENSES.

``(a) Requirement for Certification.--
``(1) In general.--Notwithstanding any other provision of
law, no civil action may lie or be maintained in a Federal or
State court against any person for providing assistance to an
element of the intelligence community, and shall be promptly
dismissed, if the Attorney General certifies to the court
that--
``(A) any assistance by that person was provided pursuant
to an order of the court established under section 103(a)
directing such assistance;
``(B) any assistance by that person was provided pursuant
to a certification in writing under section 2511(2)(a)(ii)(B)
or 2709(b) of title 18, United States Code;
``(C) any assistance by that person was provided pursuant
to a directive under sections 102(a)(4), 105B(e), as in
effect on the day before the date of the enactment of the
FISA Amendments Act of 2007, or 703(h) directing such
assistance; or
``(D) the person did not provide the alleged assistance.
``(2) Review.--A certification made pursuant to paragraph
(1) shall be subject to review by a court for abuse of
discretion.
``(b) Limitations on Disclosure.--If the Attorney General
files a declaration under section 1746 of title 28, United
States Code, that disclosure of a certification made pursuant
to subsection (a) would harm the national security of the
United States, the court shall--
``(1) review such certification in camera and ex parte; and
``(2) limit any public disclosure concerning such
certification, including any public order following such an
ex parte review, to a statement that the conditions of
subsection (a) have been met, without disclosing the
subparagraph of subsection (a)(1) that is the basis for the
certification.
``(c) Removal.--A civil action against a person for
providing assistance to an element of the intelligence
community that is brought in a State court shall be deemed to
arise under the Constitution and laws of the United States
and shall be removable under section 1441 of title 28, United
States Code.
``(d) Relationship to Other Laws.--Nothing in this section
may be construed to limit any otherwise available immunity,
privilege, or defense under any other provision of law.
``(e) Applicability.--This section shall apply to a civil
action pending on or filed after the date of enactment of the
FISA Amendments Act of 2007.''.

SEC. 204. PREEMPTION OF STATE INVESTIGATIONS.

Title VIII of the Foreign Intelligence Surveillance Act (50
U.S.C. 1801 et seq.), as added by section 203 of this Act, is
amended by adding at the end the following new section:

``SEC. 803. PREEMPTION.

``(a) In General.--No State shall have authority to--
``(1) conduct an investigation into an electronic
communication service provider's alleged assistance to an
element of the intelligence community;
``(2) require through regulation or any other means the
disclosure of information about an electronic communication
service provider's alleged assistance to an element of the
intelligence community;
``(3) impose any administrative sanction on an electronic
communication service provider for assistance to an element
of the intelligence community; or
``(4) commence or maintain a civil action or other
proceeding to enforce a requirement that an electronic
communication service provider disclose information
concerning alleged assistance to an element of the
intelligence community.
``(b) Suits by the United States.--The United States may
bring suit to enforce the provisions of this section.
``(c) Jurisdiction.--The district courts of the United
States shall have jurisdiction over any civil action brought
by the United States to enforce the provisions of this
section.
``(d) Application.--This section shall apply to any
investigation, action, or proceeding that is pending on or
filed after the date of enactment of the FISA Amendments Act
of 2007.''.

SEC. 205. TECHNICAL AMENDMENTS.

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 adding at the end the following:

``TITLE VIII--PROTECTION OF PERSONS ASSISTING THE GOVERNMENT

``Sec. 801. Definitions.
``Sec. 802. Procedures for implementing statutory defenses.
``Sec. 803. Preemption.''.
______