Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008/Title II

TITLE II — PROTECTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS

Sec. 201. 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.), as amended by section 101, is further amended by adding at the end 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) Civil Action.—The term ‘civil action’ includes a covered civil action.

``(3) Congressional Intelligence Committees.—The term ‘congressional intelligence committees’ means—

``(A) the Select Committee on Intelligence of the Senate; and

``(B) the Permanent Select Committee on Intelligence of the House of Representatives.

``(4) Contents.—The term ‘contents’ has the meaning given that term in section 101(n).

``(5) 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.

``(6) 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 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).

``(7) Intelligence Community.—The term ‘intelligence community’ has the meaning given the term in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)).

``(8) 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

``(iii) a directive under section 102(a)(4), 105B(e), as added by section 2 of the Protect America Act of 2007 (Public Law 110-55), or 702(h).

``(9) 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.—Notwithstanding any other provision of law, a civil action may not 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 district court of the United States in which such action is pending that—

``(1) any assistance by that person was provided pursuant to an order of the court established under section 103(a) directing such assistance;

``(2) 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;

``(3) any assistance by that person was provided pursuant to a directive under section 102(a)(4), 105B(e), as added by section 2 of the Protect America Act of 2007 (Public Law 110-55), or 702(h) directing such assistance;

``(4) in the case of a covered civil action, the assistance alleged to have been provided by the electronic communication service provider was—

``(A) 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

``(B) the subject of a written request or directive, or a series of written requests or directives, 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

``(5) the person did not provide the alleged assistance.

``(b) Judicial Review.—

``(1) Review of Certifications.—A certification under subsection (a) shall be given effect unless the court finds that such certification is not supported by substantial evidence provided to the court pursuant to this section.

``(2) Supplemental Materials.—In its review of a certification under subsection (a), the court may examine the court order, certification, written request, or directive described in subsection (a) and any relevant court order, certification, written request, or directive submitted pursuant to subsection (d).

``(c) 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) or the supplemental materials provided pursuant to subsection (b) or (d) would harm the national security of the United States, the court shall—

``(1) review such certification and the supplemental materials in camera and ex parte; and

``(2) limit any public disclosure concerning such certification and the supplemental materials, including any public order following such in camera and ex parte review, to a statement as to whether the case is dismissed and a description of the legal standards that govern the order, without disclosing the paragraph of subsection (a) that is the basis for the certification.

``(d) Role of the Parties.—Any plaintiff or defendant in a civil action may submit any relevant court order, certification, written request, or directive to the district court referred to in subsection (a) for review and shall be permitted to participate in the briefing or argument of any legal issue in a judicial proceeding conducted pursuant to this section, but only to the extent that such participation does not require the disclosure of classified information to such party. To the extent that classified information is relevant to the proceeding or would be revealed in the determination of an issue, the court shall review such information in camera and ex parte, and shall issue any part of the court’s written order that would reveal classified information in camera and ex parte and maintain such part under seal.

``(e) Nondelegation.—The authority and duties of the Attorney General under this section shall be performed by the Attorney General (or Acting Attorney General) or the Deputy Attorney General.

``(f) Appeal.—The courts of appeals shall have jurisdiction of appeals from interlocutory orders of the district courts of the United States granting or denying a motion to dismiss or for summary judgment under this section.

``(g) 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.

``(h) Relationship to Other Laws.—Nothing in this section shall be construed to limit any otherwise available immunity, privilege, or defense under any other provision of law.

``(i) Applicability.—This section shall apply to a civil action pending on or filed after the date of the enactment of the FISA Amendments Act of 2008.

``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 commenced after the date of the enactment of the FISA Amendments Act of 2008.

``Sec. 804. Reporting.

``(a) Semiannual Report.—Not less frequently than once every 6 months, the Attorney General shall, in a manner consistent with national security, the Rules of the House of Representatives, the Standing Rules of the Senate, and Senate Resolution 400 of the 94th Congress or any successor Senate resolution, fully inform the congressional intelligence committees, the Committee on the Judiciary of the Senate, and the Committee on the Judiciary of the House of Representatives concerning the implementation of this title.

``(b) Content.—Each report made under subsection (a) shall include—

``(1) any certifications made under section 802;

``(2) a description of the judicial review of the certifications made under section 802; and

``(3) any actions taken to enforce the provisions of section 803.”.

Sec. 202. 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.), as amended by section 101(b), is further 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.

``Sec. 804. Reporting.´´.