KLAYMAN v. OBAMA et al

Filing 52

MOTION to Dismiss or, in the Alternative for Summary Judgment, Regarding Plaintiffs' Claims Against the Verizon Defendants by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit)(Patton, Rodney). Added MOTION for Summary Judgment on 12/17/2013 (znmw, ).

H.R. 6304, FISA AMENDMENTS ACT OF 2008
SECTION-BY-SECTION ANALYSIS AND EXPLANATION
Senator John D. Rockefeller IV, Chairman of the Select Committee on
Intelligence
The consideration of legislation to amend the Foreign Intelligence
Surveillance Act of 1978 ("FISA") in the 110th Congress began with submission
by the Director of National Intelligence ("DNI") on April 12, 2007 of a
proposed Foreign Intelligence Surveillance Modernization Act of 2007, as Title
IV of the Administration's proposed Intelligence Authorization Act for Fiscal
Year 2008. The DNI's proposal was the subject of an open hearing on May 1,
2007 and subsequent closed hearings by the Senate Select Committee on
Intelligence, but was not formally introduced. It is available on the
Committee's website: http://intelligence.senate.gov/070501/bill.pdf. In the
Senate, the original legislative vehicle for the consideration of FISA
amendments in the 110th Congress was S. 2248. It was reported by the Select
Committee on Intelligence on October 26, 2007 (S. Rep. No. 110-209 (2007)),
and then sequentially reported by the Committee on the Judiciary on November
16, 2007 (S. Rep. No. 110-258 (2008)). In the House, the original legislative
vehicle was H.R. 3773. It was reported by the Committee on the Judiciary and
the Permanent Select Committee on Intelligence on October 12, 2007 (H. Rep.
No. 110-373 (Parts 1 and 2)(2007)). H.R. 3773 passed the House on November 15,
2007. S. 2248 passed the Senate on February 12, 2008, and was sent to the
House as an amendment to H.R. 3773. On March 14, 2008, the House returned H.R.
3773 to the Senate with an amendment.

No formal conference was convened to resolve the differences between the
two Houses on H.R. 3773. Instead, following an agreement reached without a
formal conference, the House passed a new bill, H.R. 6304, which contains a
complete compromise of the differences on H.R. 3773.

H.R. 6304 is a direct descendant of H.R. 3773, as well as of the original
Senate bill, S. 2248, and the legislative history of those measures
constitutes the legislative history of H.R. 6304. The section-by-section
analysis and explanation set forth below is based on the analysis and
explanation in the report of the Select Committee on Intelligence on S. 2248,
at S. Rep. No. 110-209, pp. 12-25, as expanded and edited to reflect the floor
amendments to S. 2248 and the negotiations that produced H.R. 6304.

OVERALL ORGANIZATION OF ACT
The FISA Amendments Act of 2008 ("FISA Amendments Act") contains four
titles.

Title I includes, in section 101, a new Title VII of FISA entitled "
Additional Procedures Regarding Certain Persons Outside the United States."
This new title of FISA (which will sunset in four and a half years) is a
successor to the Protect America Act of 2007, Pub. L. 110-55 (August 5, 2007)
("Protect America Act"), with amendments. Sections 102 through 110 of the Act
contain a number of amendments to FISA apart from the collection issues
addressed in the new Title VII of FISA. These include a provision reaffirming
and strengthening the requirement that FISA is the exclusive means for
electronic surveillance, important streamlining provisions, and a change in
the definitions section of FISA (in section 110 of the bill) to facilitate

foreign intelligence collection against proliferators of weapons of mass
destruction.

Title II establishes a new Title VIII of FISA which is entitled "Protection
of Persons Assisting the Government." This new title establishes a long-term
procedure, in new FISA section 802, for the Government to implement statutory
defenses and obtain the dismissal of civil cases against persons, principally
electronic communication service providers, who assist elements of the
intelligence community in accordance with defined legal documents, namely,
orders of the FISA Court or certifications or directives provided for and
defined by statute. Section 802 also incorporates a procedure with precise
boundaries for liability relief for electronic communication service providers
who are defendants in civil cases involving an intelligence activity
authorized by the President between September 11, 2001, and January 17, 2007.
In addition, Title II provides for the protection, by way of preemption, of
the federal government's ability to conduct intelligence activities without
interference by state investigations.

Title III directs the Inspectors General of the Department of Justice, the
Department of Defense, the Office of National Intelligence, the National
Security Agency, and any other element of the intelligence community that
participated in the President's Surveillance Program authorized by the
President between September 11, 2001, and January 17, 2007, to conduct a
comprehensive review of the program. The Inspectors General are required to
submit a report to the appropriate committees of Congress, within one year,
that addresses, among other things, all of the facts necessary to describe the
establishment, implementation, product, and use of the product of the
President's Surveillance Program, including the participation of individuals
and entities in the private sector related to the program.

Title IV contains important procedures for the transition from the Protect
America Act to the new Title VII of FISA. Section 404(a)(7) directs the
Attorney General and the DNI, if they seek to replace an authorization under
the Protect America Act, to *S6130 submit the certification and procedures
required in accordance with the new section 702 to the FISA Court at least 30
days before the expiration of such authorizations, to the extent practicable.
Title IV explicitly provides for the continued effect of orders,
authorizations, and directives issued under the Protect America Act, and of
the provisions pertaining to protection from liability, FISA court
jurisdiction, the use of information acquired and Executive Branch reporting
requirements, past the statutory sunset of that act. Title IV also contains
provisions on the continuation of authorizations, directives, and orders under
Title VII that are in effect at the time of the December 31, 2012 sunset,
until their expiration within the year following the sunset.

TITLE I. FOREIGN INTELLIGENCE SURVEILLANCE
Section 101. Targeting the Communications of Persons Outside the United States

Section 101(a) of the FISA Amendments Act establishes a new Title VII of
FISA. Entitled "Additional Procedures Regarding Certain Persons Outside the
United States," the new title includes, with important modifications, an
authority similar to that granted by the Protect America Act as temporary
sections 105A, 105B, and 105C of FISA. Those Protect America Act provisions
had been placed within FISA's Title I on electronic surveillance. Moving the

amended authority to a title of its own is appropriate because the authority
involves not only the acquisition of communications as they are being carried
but also while they are stored by electronic communication service providers.

Section 701. Definitions

Section 701 incorporates into Title VII the definition of nine terms that
are defined in Title I of FISA and used in Title VII: "agent of a foreign
power," "Attorney General," "contents," "electronic surveillance," "foreign
intelligence information," "foreign power," "person," "United States," and "
United States person." It defines the congressional intelligence committees
for the purposes of Title VII. Section 701 defines the two courts established
in Title I that are assigned responsibilities under Title VII: the Foreign
Intelligence Surveillance Court ("FISA Court") and the Foreign Intelligence
Surveillance Court of Review. Section 701 also defines "intelligence
community" as found in the National Security Act of 1947. Finally, section 701
defines a term, not previously defined in FISA, which has an important role in
setting the parameters of Title VII: "electronic communication service
provider." This definition is connected to the objective that the acquisition
of foreign intelligence pursuant to this title is meant to encompass the
acquisition of stored electronic communications and related data.

Section 702. Procedures for Targeting Certain Persons Outside the United
States Other than United States Persons

Section 702(a) sets forth the basic authorization in Title VII, replacing
section 105B of FISA, as added by the Protect America Act. Unlike the Protect
America Act, the collection authority in section 702(a) is to be conducted
pursuant to the issuance of an order of the FISA Court, or pursuant to a
determination of the Attorney General and the DNI, acting jointly, that
exigent circumstances exist, as defined in section 702(c)(2), subject to
subsequent and expeditious action by the FISA Court. Authorizations must
contain an effective date, and may be valid for a period of up to one year
from that date.

Subsequent provisions of the Act implement the prior order and effective
date provisions of section 702(a): in addition to section 702(c)(2) which
defines exigent circumstances, section 702(i)(1)(B) provides that the court
shall complete its review of certifications and procedures within 30 days
(unless extended under section 702(j)(2)); section 702(i)(5)(A) provides for
the submission of certifications and procedures to the FISA Court at least 30
days before the expiration of authorizations that are being replaced, to the
extent practicable; and section 702(i)(5)(B) provides for the continued
effectiveness of expiring certifications and procedures until the court issues
an order concerning their replacements.

Section 105B and section 702(a) differ in other important respects. Section
105B authorized the acquisition of foreign intelligence information "
concerning" persons reasonably believed to be outside the United States. To
make clear that all collection under Title VII must be targeted at persons who
are reasonably believed to be outside the United States, section 702(a)
eliminates the word "concerning" and instead authorizes "the targeting of
persons reasonably believed to be located outside the United States to collect

foreign intelligence information."

Section 702(b) establishes five related limitations on the authorization in
section 702(a). Overall, the limitations ensure that the new authority is not
used for surveillance directed at persons within the United States or at
United States persons. The first is a specific prohibition on using the new
authority to target intentionally any person within the United States. The
second provides that the authority may not be used to conduct "reverse
targeting," the intentional targeting of a person reasonably believed to be
outside the United States if the purpose of the acquisition is to target a
person reasonably believed to be in the United States. If the purpose of the
acquisition is to target a person reasonably believed to be in the United
States, the acquisition must be conducted in accordance with other titles of
FISA. The third bars the intentional targeting of a United States person
reasonably believed to be outside the United States. In order to target such
United States person, acquisition must be conducted under three subsequent
sections of Title VII, which require individual FISA court orders for United
States persons: sections 703, 704, and 705. The fourth limitation goes beyond
targeting (the object of the first three limitations) and prohibits the
intentional acquisition of any communication as to which the sender and all
intended recipients are known at the time of the acquisition to be located in
the United States. The fifth is an overarching mandate that an acquisition
authorized in section 702(a) shall be conducted in a manner consistent with
the Fourth Amendment to the U.S. Constitution, which provides for "the right
of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures."

Section 702(c) governs the conduct of acquisitions. Pursuant to section
702(c)(1), acquisitions authorized under section 702(a) may be conducted only
in accordance with targeting and minimization procedures approved at least
annually by the FISA Court and a certification of the Attorney General and the
DNI, upon its submission in accordance with section 702(g). Section 702(c)(2)
describes the "exigent circumstances" in which the Attorney General and
Director of National Intelligence may authorize targeting for a limited time
without a prior court order for purposes of subsection (a). Section 702(c)(2)
provides that the Attorney General and the DNI may make a determination that
exigent circumstances exist because, without immediate implementation of an
authorization under section 702(a), intelligence important to the national
security of the United States may be lost or not timely acquired and time does
not permit the issuance of an order pursuant to section 702(i)(3) prior to the
implementation of such authorization. Section 702(c)(3) provides that the
Attorney General and the DNI may make such a determination before the
submission of a certification or by amending a certification at any time
during which judicial review of such certification is pending before the FISA
Court.

Section 702(c)(4) addresses the concern, reflected in section 105A of FISA
as added by the Protect America Act, that the definition of electronic
surveillance in Title I might prevent use of the new procedures. To address
this concern, section 105A redefined the term "electronic surveillance" to
exclude "surveillance directed at a person reasonably believed to be located
outside of the United States." This redefinition, however, broadly exempted
activities from the limitations of FISA's individual order requirements. In
contrast, section 702(c)(4) does not change the definition of electronic
surveillance, but clarifies the intent of Congress to allow the targeting of
foreign targets outside the United States in accordance with section 702
without an application for a court order under Title I of FISA. The addition

of this construction paragraph, as well as the language in section 702(a) that
an authorization may occur "notwithstanding any other law," makes clear that
nothing in Title I of FISA shall be construed to require a court order under
that title for an acquisition that is targeted in accordance with section 702
at a foreign person outside the United States.

Section 702(d) provides, in a manner essentially identical to the Protect
America Act, for the adoption by the Attorney General, in consultation with
the DNI, of targeting procedures that are reasonably designed to ensure that
collection is limited to targeting persons reasonably believed to be outside
the United States. As provided in the Protect America Act, the targeting
procedures are subject to judicial review and approval. In addition to the
requirements of the Protect America Act, however, section 702(d) provides that
the targeting procedures also must be reasonably designed to prevent the
intentional acquisition of any communication as to which the sender and all
intended recipients are known at the time of the acquisition to be located in
the United States. Section 702(d)(2) subjects these targeting procedures to
judicial review and approval.

Section 702(e) provides that the Attorney General, in consultation with the
DNI, shall adopt, for acquisitions authorized by section 702(a), minimization
procedures that are consistent with section 101(h) or 301(4) of FISA, which
establish FISA's minimization requirements for electronic surveillance and
physical searches. Section 702(e)(2) provides that the minimization
procedures, which are essential to the protection of United States citizens
and permanent residents, shall be subject to judicial review and approval.
This corrects an omission in the Protect America Act which had not provided
for judicial review of the adherence of minimization procedures to statutory
requirements.

Section 702(f) provides that the Attorney General, in consultation with the
DNI, shall adopt guidelines to ensure compliance with *S6131 the limitations
in section 702(b), including the prohibitions on the acquisition of purely
domestic communications, on targeting persons within the United States, on
targeting United States persons located outside the United States, and on
reverse targeting. Such guidelines shall also ensure that an application for a
court order is filed as required by FISA. It is intended that these guidelines
will be used for training intelligence community personnel so that there are
clear requirements and procedures governing the appropriate implementation of
the authority under this title of FISA. The Attorney General is to provide
these guidelines to the congressional intelligence committees, the judiciary
committees of the House of Representatives and the Senate, and the FISA Court.
Subsequent provisions implement the guidelines requirement. See section
702(g)(2)(A)(iii)(certification requirements); section 702(l)(1) and 702(l)(2)
(assessment of compliance with guidelines); and section 707(b)(1)(G)(ii)
(reporting on noncompliance with guidelines).

Section 702(g) requires that the Attorney General and the DNI provide to
the FISA Court, prior to implementation of an authorization under subsection
(a), a written certification, with any supporting affidavits. In exigent
circumstances, the Attorney General and DNI may make a determination that,
without immediate implementation, intelligence important to the national
security will be lost or not timely acquired prior to the implementation of an
authorization. In exigent circumstances, if time does not permit the
submission of a certification prior to the implementation of an authorization,
the certification must be submitted to the FISA Court no later than seven days

after the determination is made. This seven-day time period for submission of
a certification in the case of exigent circumstances is identical to the time
period by which the Attorney General must apply for a court order after
authorizing an emergency surveillance under other provisions of FISA, as
amended by this Act.

Section 702(g)(2) sets forth the requirements that must be contained in the
written certification. These elements include: that the targeting and
minimization procedures have been approved by the FISA Court or will be
submitted to the court with the certification; that guidelines have been
adopted to ensure compliance with the limitations of subsection (b) have been
adopted; that those procedures and guidelines are consistent with the Fourth
Amendment; that the acquisition is targeted at persons reasonably believed to
be outside the United States; that a significant purpose of the acquisition is
to obtain foreign intelligence information; and an effective date for the
authorization that in most cases is at least 30 days after the submission of
the written certification. Additionally, as an overall limitation on the
method of acquisition. permitted under section 702, the certification must
attest that the acquisition involves obtaining foreign intelligence
information from or with the assistance of an electronic communication service
provider.

Requiring an effective date in the certification serves to identify the
beginning of the period of authorization (which is likely to be a year) for
collection and to alert the FISA Court of when the Attorney General and DNI
are seeking to begin collection. Section 702(g)(3) permits the Attorney
General and DNI to change the effective date in the certification by amending
the certification.

As with the Protect America Act, the certification under section 702(g)(4)
is not required to identify the specific facilities, places, premises, or
property at which the acquisition under section 702(a) will be directed or
conducted. The certification shall be subject to review by the FISA Court.

Section 702(h) authorizes the Attorney General and the DNI to direct, in
writing, an electronic communication service provider to furnish the
Government with all information, facilities, or assistance necessary to
accomplish the acquisition authorized under subsection 702(a). It requires
compensation for this assistance and provides that no cause of action shall
lie in any court against an electronic communication service provider for its
assistance in accordance with a directive. Section 702(h) also establishes
expedited procedures in the FISA Court for a provider to challenge the
legality of a directive or the Government to enforce it. In either case, the
question for the court is whether the directive meets the requirements of
section 702 and is otherwise lawful. Whether the proceeding begins as a
provider challenge or a Government enforcement petition, if the court upholds
the directive as issued or modified, the court shall order the provider to
comply. Failure to comply may be punished as a contempt of court. The
proceedings shall be expedited and decided within 30 days, unless that time is
extended under section 702(j)(2).

Section 702(i) provides for judicial review of any certification required
by section 702(g) and the targeting and minimization procedures adopted
pursuant to sections 702(d) and 702(e). In accordance with section 702(i)(5),
if the Attorney General and the DNI seek to reauthorize or replace an

authorization in effect under the Act, they shall submit, to the extent
practicable, the certification and procedures at least 30 days prior to the
expiration of such authorization.

The court shall review certifications to determine whether they contain all
the required elements. It shall review targeting procedures to assess whether
they are reasonably designed to ensure that the acquisition activity is
limited to the targeting of persons reasonably believed to be located outside
the United States and prevent the intentional acquisition of any communication
whose sender and intended recipients are known to be located in the United
States. The Protect America Act had limited the review of targeting procedures
to a "clearly erroneous" standard; section 702(i) omits that limitation. For
minimization procedures, section 702(i) provides that the court shall review
them to assess whether they meet the statutory requirements. The court is to
review the certifications and procedures and issue its order within 30 days
after they were submitted unless that time is extended under section
702(j)(2). The Attorney General and the DNI may also amend the certification
or procedures at any time under section 702(i)(1)(C), but those amended
certifications or procedures must be submitted to the court in no more than 7
days after amendment. The amended procedures may be used pending the court's
review.

If the FISA Court finds that the certification contains all the required
elements and that the targeting and minimization procedures are consistent
with the requirements of subsections (d) and (e) and with the Fourth
Amendment, the court shall enter an order approving their use or continued use
for the acquisition authorized by section 702(a). If it does not so find, the
court shall order the Government, at its election, to correct any deficiencies
or cease, or not begin, the acquisition. If acquisitions have begun, they may
continue during any rehearing en banc of an order requiring the correction of
deficiencies. If the Government appeals to the Foreign Intelligence
Surveillance Court of Review, any collection that has begun may continue at
least until that court enters an order, not later than 60 days after filing of
the petition for review, which determines whether all or any part of the
correction order shall be implemented during the appeal

Section 702(j)(1) provides that judicial proceedings are to be conducted as
expeditiously as possible. Section 702(j)(2) provides that the time limits for
judicial review in section 702 (for judicial review of certifications and
procedures or in challenges or enforcement proceedings concerning directives)
shall apply unless extended, by written order, as necessary for good cause in
a manner consistent with national security.

Section 702(k) requires that records of proceedings under section 702 shall
be maintained by the FISA Court under security measures adopted by the Chief
Justice in consultation with the Attorney General and the DNI. In addition,
all petitions are to be filed under seal and the FISA Court, upon the request
of the Government, shall consider ex parte and in camera any Government
submission or portions of a submission that may include classified
information. The Attorney General and the DNI are to retain directives made or
orders granted for not less than 10 years.

Section 702(l) provides for oversight of the implementation of Title VII.
It has three parts. First, the Attorney General and the DNI shall assess
semiannually under subsection (l)(1) compliance with the targeting and

minimization procedures, and the Attorney General guidelines for compliance
with limitations under section 702(b), and submit the assessment to the FISA
Court and to the congressional intelligence and judiciary committees,
consistent with congressional rules.

Second, under subsection (l)(2)(A), the Inspector General of the Department
of Justice and the inspector general ("IG") of any intelligence community
element authorized to acquire foreign intelligence under section 702(a) are
authorized to review compliance of their agency or element with the targeting
and minimization procedures adopted in accordance with subsections (d) and (e)
and the guidelines adopted in accordance with subsection (f). Subsections
(l)(2)(B) and (l)(2)(C) mandate several statistics that the IGs shall review
with respect to United States persons, including the number of disseminated
intelligence reports that contain references to particular U.S. persons, the
number of U.S. persons whose identities were disseminated in response to
particular requests, and the number of targets later determined to be located
in the United States. Their reports shall be submitted to the Attorney
General, the DNI, and the appropriate congressional committees. Section
702(l)(2) provides no statutory schedule for the completion of these IG
reviews; the IGs should coordinate with the heads of their agencies about the
timing for completion of the IG reviews so that they are done at a time that
would be useful for the agency heads to complete their semiannual reviews.

Third, under subsection (l)(3), the head of an intelligence community
element that conducts an acquisition under section 702 shall review annually
whether there is reason to believe that foreign intelligence information has
been or will be obtained from the acquisition and provide an accounting of
information pertaining to United States persons similar to that included in
the IG report. Subsection (l)(3) also encourages the *S6132 head of the
element to develop procedures to assess the extent to which the new authority
acquires the communications of U.S. persons, and to report the results of such
assessment. The review is to be used by the head of the element to evaluate
the adequacy of minimization procedures. The annual review is to be submitted
to the FISA Court, the Attorney General and the DNI, and to the appropriate
congressional committees.

Section 703. Certain Acquisition Inside the United States Targeting United
States Persons Outside the United States

Section 703 governs the targeting of United States persons who are
reasonably believed to be outside the United States when the acquisition of
foreign intelligence is conducted inside the United States. The authority and
procedures of section 703 apply when the acquisition either constitutes
electronic surveillance, as defined in Title I of FISA, or is of stored
electronic communications or stored electronic data. If the United States
person returns to the United States, acquisition under section 703 must cease.
The Government may always, however, obtain an order or authorization under
another title of FISA.

The application procedures and provisions for a FISA Court order in
sections 703(b) and 703(c) are drawn from Titles I and III of FISA. Key among
them is the requirement that the FISA Court determine that there is probable
cause to believe that, for the United States person who is the target of the
surveillance, the person is reasonably believed to be located outside the
United States and is a foreign power or an agent, officer or employee of a

foreign power. The inclusion of United States persons who are officers or
employees of a foreign power, as well as those who are agents of a foreign
power as that term is used in FISA, is intended to permit the type of
collection against United States persons outside the United States that has
been allowed under existing Executive Branch guidelines. The FISA Court shall
also review and approve minimization procedures that will be applicable to the
acquisition, and shall order compliance with such procedures.

As with FISA orders against persons in the United States, FISA orders
against United States persons outside of the United States under section 703
may not exceed 90 days and may be renewed for additional 90-day periods upon
the submission of renewal applications. Emergency authorizations under section
703 are consistent with the requirements for emergency authorizations in FISA
against persons in the United States, as amended by this Act; the Attorney
General may authorize an emergency acquisition if an application is submitted
to the FISA Court in not more than seven days.

Section 703(g) is a construction provision that clarifies that, if the
Government obtains an order and target a particular United States person in
accordance with section 703, FISA does not require the Government to seek a
court order under any other provision of FISA to target that United States
person while that person is reasonably believed to be located outside the
United States.

Section 704. Other Acquisitions Targeting United States Persons Outside the
United States

Section 704 governs other acquisitions that target United States persons
who are outside the United States. Sections 702 and 703 address acquisitions
that constitute electronic surveillance or the acquisition of stored
electronic communications. In contrast, as provided in section 704(a)(2),
section 704 addresses any targeting of a United States person outside of the
United States under circumstances in which that person has a reasonable
expectation of privacy and a warrant would be required if the acquisition
occurred within the United States. It thus covers not only communications
intelligence, but, if it were to occur, the physical search of a home, office,
or business of a United States person by an element of the United States
intelligence community, outside of the United States.

Pursuant to section 704(a)(3), if the targeted United States person is
reasonably believed to be in the United States while an order under section
704 is in effect, the acquisition against that person shall cease unless
authority is obtained under another applicable provision of FISA. Likewise,
the Government may not use section 704 to authorize an acquisition of foreign
intelligence inside the United States.

Section 704(b) describes the application to the FISA Court that is
required. For an order under section 704(c), the FISA Court must determine
that there is probable cause to believe that the United States person who is
the target of the acquisition is reasonably believed to be located outside the
United States and is a foreign power, or an agent, officer or employee of a
foreign power. An order is valid for a period not to exceed 90 days, and may
be renewed for additional 90-day periods upon submission of renewal

applications meeting application requirements.

Because an acquisition under section 704 is conducted outside the United
States, or is otherwise not covered by FISA, the FISA Court is expressly not
given jurisdiction to review the means by which an acquisition under this
section may be conducted. Although the FISA Court's review is limited to
determinations of probable cause, section 704 anticipates that any acquisition
conducted pursuant to a section 704 order will in all other respects be
conducted in compliance with relevant regulations and Executive Orders
governing the acquisition of foreign intelligence outside the United States,
including Executive Order 12333 or any successor order.

Section 705. Joint Applications and Concurrent Authorizations

Section 705 provides that if an acquisition targeting a United States
person under section 703 or 704 is proposed to be conducted both inside and
outside the United States, a judge of the FISA Court may issue simultaneously,
upon the request of the Government in a joint application meeting the
requirements of sections 703 and 704, orders under both sections as
appropriate. If an order authorizing electronic surveillance or physical
search has been obtained under section 105 or section 304, and that order is
still in effect, the Attorney General may authorize, without an order under
section 703 or 704, the targeting of that United States person for the purpose
of acquiring foreign intelligence information while such person is reasonably
believed to be located outside the United States.

Section 706. Use of Information Acquired Under Title VII

Section 706 fills a void that has existed under the Protect America Act
which had contained no provision governing the use of acquired intelligence.
Section 706(a) provides that information acquired from an acquisition
conducted under section 702 shall be deemed to be information acquired from an
electronic surveillance pursuant to Title I of FISA for the purposes of
section 106 of FISA, which is the provision of Title I of FISA that governs
public disclosure or use in criminal proceedings. The one exception is for
subsection (j) of section 106, as the notice provision in that subsection,
while manageable in individual Title I proceedings, would present a difficult
national security question when applied to a Title VII acquisition. Section
706(b) also provides that information acquired from an acquisition conducted
under section 703 shall be deemed to be information acquired from an
electronic surveillance pursuant to Title I of FISA for the purposes of
section 106 of FISA; however, the notice provision of subsection (j) applies.
Section 706 ensures that a uniform standard for the types of information is
acquired under the new title.

Section 707. Congressional Oversight

Section 707 provides for additional congressional oversight of the
implementation of Title VII. The Attorney General is to fully inform "in a
manner consistent with national security" the congressional intelligence and
judiciary committees about implementation of the Act at least semiannually.
Each report is to include any certifications made under section 702, the

reasons for any determinations made under section 702(c)(2), any directives
issued during the reporting period, a description of the judicial review
during the reporting period to include a copy of any order or pleading that
contains a significant legal interpretation of section 702, incidents of
noncompliance and procedures to implement the section. With respect to
sections 703 and 704, the report must contain the number of applications made
for orders under each section and the number of such orders granted, modified
and denied, as well as the number of emergency authorizations made pursuant to
each section and the subsequent orders approving or denying the relevant
application. In keeping the congressional intelligence committees fully
informed, the Attorney General should provide no less information than has
been provided in the past in keeping the committees fully and currently
informed.

Section 708. Savings Provision

Section 708 provides that nothing in Title VII shall be construed to limit
the authority of the Government to seek an order or authorization under, or
otherwise engage in any activity that is authorized under, any other title of
FISA. This language is designed to ensure that Title VII cannot be interpreted
to prevent the Government from submitting applications and seeking orders
under other titles of FISA.

Section 101(b). Table of Contents

Section 101(b) of the bill amends the table of contents in the first
section of FISA.

Subsection 101(c). Technical and Conforming Amendments

Section 101(c) of the bill provides for technical and conforming amendments
in Title 18 of the United States Code and in FISA.

Section 102. Statement of Exclusive Means by which Electronic Surveillance and
Interception of Certain Communications May Be Conducted

Section 102(a) amends Title I of FISA by adding a new Section 112 of FISA.
Under the heading of "Statement of Exclusive Means by which Electronic
Surveillance and Interception of Certain Communications May Be Conducted," the
new section 112(a) states: "Except as provided in subsection (b), the
procedures of chapters 119, 121 and 126 of Title 18, United States Code, and
this Act shall be the exclusive means by which electronic surveillance and the
interception of domestic wire, oral, or electronic communication may be
conducted." New section 112(b) of FISA provides that only an express statutory
authorization for electronic surveillance or the interception of domestic
wire, oral, or electronic communications, other than as an amendment to FISA
or chapters 119, 121, or 206 of Title 18 shall constitute an additional
exclusive means for the *S6133 purpose of subsection (a). The new section 112
is based on a provision which Congress enacted in 1978 as part of the original
FISA that is codified in section 2511(2)(f) of Title 18, United States Code,
and which will remain in the U.S. Code.

Section 102(a) strengthens the statutory provisions pertaining to
electronic surveillance and interception of certain communications to clarify
the express intent of Congress that these statutory provisions are the
exclusive means for conducting electronic surveillance and interception of
certain communications. With the absence of reference to the Authorization for
Use of Military Force, Pub. L. 107-40, (September 18, 2001) ("AUMF"), Congress
makes clear that this AUMF or any other existing statute cannot be used in the
future as the statutory basis for circumventing FISA. Section 102(a) is
intended to ensure that additional exclusive means for surveillance or
interceptions shall be express statutory authorizations.

In accord with section 102(b) of the bill, section 109 of FISA that
provides for criminal penalties for violations of FISA, is amended to
implement the exclusivity requirement added in section 112 by making clear
that the safe harbor to FISA's criminal offense provision is limited to
statutory authorizations for electronic surveillance or the interception of
domestic wire, oral, or electronic communications which are pursuant to a
provision of FISA, one of the enumerated chapters of the criminal code, or a
statutory authorization that expressly provides an additional exclusive means
for conducting the electronic surveillance. By virtue of the cross-reference
in section 110 of FISA to section 109, that limitation on the safe harbor in
section 109 applies equally to section 110 on civil liability for conducting
unlawful electronic surveillance.

Section 102(c) requires that when a certification for assistance to obtain
foreign intelligence is based on statutory authority, the certification
provided to an electronic communication service provider is to include the
specific statutory authorization for the request for assistance and certify
that the statutory requirements have been met. This provision is designed to
assist electronic communication service providers in understanding the legal
basis for any government requests for assistance.

In the section-by-section analysis of S. 2248, the report of the Select
Committee on Intelligence (S. Rep. No. 110-209, at 18) described and
incorporated the discussion of exclusivity in the 1978 conference report on
the original Foreign Intelligence Surveillance Act, in particular the
conferees' description of the Youngstown Sheet and Tube Co. v. Sawyer, 343
U.S. 579, 637 (1952) and the application of the principles described there to
the current legislation. That full discussion should be deemed incorporated in
this section-by-section analysis.

Section 103. Submittal to Congress of Certain Court Orders under the Foreign
Intelligence Surveillance Act of 1978

Section 6002 of the Intelligence Reform Act and Terrorism Prevention Act of
2004 (Pub. L. 108-458), added a Title VI to FISA that augments the semiannual
reporting obligations of the Attorney General to the intelligence and
judiciary committees of the Senate and House of Representatives. Under section
6002, the Attorney General shall report a summary of significant legal
interpretations of FISA in matters before the FISA Court or Foreign
Intelligence Surveillance Court of Review. The requirement extends to
interpretations presented in applications or pleadings filed with either court

by the Department of Justice. In addition to the semiannual summary, the
Department of Justice is required to provide copies of court decisions, but
not orders, which include significant interpretations of FISA. The importance
of the reporting requirement is that, because the two courts conduct their
business in secret, Congress needs the reports to know how the law it has
enacted is being interpreted.

Section 103 improves the Title VI reporting requirements in three ways.
First, as significant legal interpretations may be included in orders as well
as opinions, section 103 requires that orders also be provided to the
committees. Second, as the semiannual report often takes many months after the
end of the semiannual period to prepare, section 103 accelerates provision of
information about significant legal interpretations by requiring the
submission of such decisions, orders, or opinions within 45 days. Finally,
section 103 requires that the Attorney General shall submit a copy of any such
decision, order, or opinion, and any pleadings, applications, or memoranda of
law associated with such decision, order, or opinion, from the period five
years preceding enactment of the bill that has not previously been submitted
to the congressional intelligence and judiciary committees.

OVERVIEW OF SECTIONS 104 THROUGH SECTION 109. FISA STREAMLINING
Sections 104 through 109 amend various sections of FISA for such purposes
as reducing a paperwork requirement, modifying time requirements, or providing
additional flexibility in terms of the range of Government officials who may
authorize FISA actions. Collectively, these amendments are described as
streamlining amendments. In general, they are intended to increase the
efficiency of the FISA process without depriving the FISA Court of the
information it needs to make findings required under FISA.

Section 104. Applications for Court Orders

Section 104 of the bill strikes two of the eleven paragraphs on standard
information in an application for a surveillance order under section 104 of
FISA, either because the information is provided elsewhere in the application
process or is not needed.

In various places, FISA has required the submission of "detailed"
information, as in section 104 of FISA, "a detailed description of the nature
of the information sought and the type of communications or activities to be
subjected to the surveillance." The DNI requested legislation that asked that
" summary" be substituted for "detailed" for this and other application
requirements, in order to reduce the length of FISA applications. In general,
the bill approaches this by eliminating the mandate for "detailed"
descriptions, leaving it to the FISA Court and the Government to work out the
level of specificity needed by the FISA Court to perform its statutory
responsibilities. With respect to one item of information, "a statement of the
means by which the surveillance will be effected," the bill modifies the
requirement by allowing for "a summary statement."

In aid of flexibility, section 104 increases the number of individuals who
may make FISA applications by allowing the President to designate the Deputy
Director of the Federal Bureau of Investigation ("FBI") as one of those

individuals. This should enable the Government to move more expeditiously to
obtain certifications when the Director of the FBI is away from Washington or
otherwise unavailable.

Subsection (b) of section 104 of FISA is eliminated as obsolete in light of
current applications. The Director of the Central Intelligence Agency is added
to the list of officials who may make a written request to the Attorney
General to personally review a FISA application as the head of the CIA had
this authority prior to the establishment of the Office of the Director of
National Intelligence.

Section 105. Issuance of an Order

Section 105 strikes from Section 105 of FISA several unnecessary or
obsolete provisions. Section 105 strikes subsection (c)(1)(F) of Section 105
of FISA which requires minimization procedures applicable to each surveillance
device employed because Section 105(c)(2)(A) requires each order approving
electronic surveillance to direct the minimization procedures to be followed.

Subsection (a)(6) reorganizes, in more readable form, the emergency
surveillance provision of section 105(f), now redesignated section 105(e),
with a substantive change of extending from 3 to 7 days the time by which the
Attorney General must apply for and obtain a court order after authorizing an
emergency surveillance. The purpose of the change is to help make emergency
authority a more practical tool while keeping it within the parameters of
FISA.

Subsection (a)(7) adds a new paragraph to section 105 of FISA to require
the FISA Court, on the Government's request, when granting an application for
electronic surveillance, to authorize at the same time the installation and
use of pen registers and trap and trace devices. This will save the paperwork
that had been involved in making two applications.

Section 106. Use of Information

Section 106 amends section 106(i) of FISA with regard to the limitations on
the use of unintentionally acquired information. Currently, section 106(i) of
FISA provides that unintentionally acquired radio communication between
persons located in the United States must be destroyed unless the Attorney
General determines that the contents of the communications indicates a threat
of death or serious bodily harm to any person. Section 106 of the bill amends
subsection 106(i) of FISA by making it technology neutral on the principle
that the same rule for the use of information indicating threats of death or
serious harm should apply no matter how the communication is transmitted.

Section 107. Amendments for Physical Searches

Section 107 makes changes to Title III of FISA: changing applications and
orders for physical searches to correspond to changes in sections 104 and 105
on reduction of some application paperwork; providing the FBI with

administrative flexibility in enabling its Deputy Director to be a certifying
officer; and extending the time, from 3 days to 7 days, for applying for and
obtaining a court order after authorization of an emergency search.

Section 303(a)(4)(C), which will be redesignated section 303(a)(3)(C),
requires that each application for physical search authority state the
applicant's belief that the property is "owned, used, possessed by, or is in
transmit to or from" a foreign power or an agent of a foreign power. In order
to provide needed flexibility and to make the provision consistent with
electronic surveillance provisions, section 107(a)(1)(D) of the bill allows
the FBI to apply for authority to search property that also is "about to be"
owned, used, or possessed by a foreign power or agent of a foreign power, or
in transit to or from one.

Section 108. Amendments for Emergency Pen Registers and Trap and Trace Devices

Section 108 amends section 403 of FISA to extend from 2 days to 7 days the
time for applying for and obtaining a court order after an emergency
installation of a pen register or trap and trace device. This change
harmonizes among FISA's provisions for electronic surveillance, search, and
pen register/*S6134 trap and trace authority the time requirements that follow
the Attorney General's decision to take emergency action.

Section 109. Foreign Intelligence Surveillance Court

Section 109 contains four amendments to section 103 of FISA, which
establishes the FISA Court and the Foreign Intelligence Surveillance Court of
Review.

Section 109(a) amends section 103 to provide that judges on the FISA Court
shall be drawn from "at least seven" of the United States judicial circuits.
The current requirement-that the eleven judges be drawn from seven judicial
circuits (with the number appearing to be a ceiling rather than a floor) has
proven unnecessarily restrictive or complicated for the designation of the
judges to the FISA Court.

Section 109(b) amends section 103 to allow the FISA Court to hold a hearing
or rehearing of a matter en banc, which is by all the judges who constitute
the FISA Court sitting together. The Court may determine to do this on its own
initiative, at the request of the Government in any proceeding under FISA, or
at the request of a party in the few proceedings in which a private entity or
person may be a party, i.e., challenges to document production orders under
Title V, or proceedings on the legality or enforcement of directives to
electronic communication service providers under Title VII.

Under section 109(b), en banc review may be ordered by a majority of the
judges who constitute the FISA Court upon a determination that it is necessary
to secure or maintain uniformity of the court's decisions or that a particular
proceeding involves a question of exceptional importance. En banc proceedings
should be rare and in the interest of the general objective of fostering
expeditious consideration of matters before the FISA Court.

Section 109(c) provides authority for the entry of stays, or the entry of
orders modifying orders entered by the FISA Court or the Foreign Intelligence
Surveillance Court of Review, pending appeal or review in the Supreme Court.
This authority is supplemental to, and does not supersede, the specific
provision in section 702(i)(4)(B) that acquisitions under Title VII may
continue during the pendency of any rehearing en banc and appeal to the Court
of Review subject to the requirement for a determination within 60 days under
section 702(i)(4)(C).

Section 109(d) provides that nothing in FISA shall be construed to reduce
or contravene the inherent authority of the FISA Court to determine or enforce
compliance with any order of that court or with a procedure approved by it.

Section 110. Weapons of Mass Destruction

Section 110 amends the definitions in FISA of foreign power and agent of a
foreign power to include individuals who are not United States persons and
entities not substantially composed of United States persons that are engaged
in the international proliferation of weapons of mass destruction. Section 110
also adds a definition of weapon of mass destruction to the Act that defines
weapons of mass destruction to cover explosive, incendiary, or poison gas
devices that are designed, intended to, or have the capability to cause a mass
casualty incident or death, and biological, chemical and nuclear weapons that
are designed, intended to, or have the capability to cause illness or serious
bodily injury to a significant number of persons. Section 110 also makes
corresponding, technical and conforming changes to FISA.

Title II. Protections for Electronic Communication Service Providers

This title establishes a new Title VIII of FISA. The title addresses
liability relief for electronic communication service providers who have been
alleged in various civil actions to have assisted the U.S. Government between
September 11, 2001, and January 17, 2007, when the Attorney General announced
the termination of the Terrorist Surveillance Program. In addition, Title VIII
contains provisions of law intended to implement statutory defenses for
electronic communication service providers and others who assist the
Government in accordance with precise, existing legal requirements, and for
providing for federal preemption of state investigations. The liability
protection provisions of Title VIII are not subject to sunset.

Section 801. Definitions

Section 801 establishes definitions for Title VIII. Several are of
particular importance.

The term "assistance" is defined to mean the provision of, or the provision
of access to, information, facilities, or another form of assistance. The word
"information" is itself described in a parenthetical to include communication
contents, communication records, or other information relating to a customer

or communications. "Contents" is defined by reference to its meaning in Title
I of FISA. By that reference, it includes any information concerning the
identity of the parties to a communication or the existence, substance,
purport, or meaning of it.

The term "civil action" is defined to include a "covered civil action."
Thus, "covered civil actions" are a subset of civil actions, and everything in
new Title VIII that is applicable generally to civil actions is also
applicable to "covered civil actions." A "covered civil action" has two key
elements. It is defined as a civil action filed in a federal or state court
which (1) alleges that an electronic communication service provider (a defined
term) furnished assistance to an element of the intelligence community and (2)
seeks monetary or other relief from the electronic communication service
provider related to the provision of the assistance. Both elements must be
present for the lawsuit to be a covered civil action.

The term "person" (the full universe of those protected by section 802) is
necessarily broader than the definition of electronic communication service
provider. The aspects of Title VIII that apply to those who assist the
Government in accordance with precise, existing legal requirements apply to
all who may be ordered to provide assistance under FISA, such as custodians of
records who may be directed to produce records by the FISA Court under Title V
of FISA or landlords who may be required to provide access under Title I or
III of FISA, not just to electronic communication service providers.

Section 802. Procedures for Implementing Statutory Defenses

Section 802 establishes procedures for implementing statutory defenses.
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 makes a certification to the district court
in which the action is pending. (If an action had been commenced in state
court, it would have to be removed, pursuant to section 802(g) to a district
court, where a certification under section 802 could be filed.) The
certification must state either that the assistance was not provided (section
802(a)(5)) or, if furnished, that it was provided pursuant to specific
statutory requirements (sections 802(a)(1-4)). Three of these underlying
requirements, which are specifically described in section 802 (sections
802(a)(1-3)), come from existing law. They include: an order of the FISA Court
directing assistance, a certification in writing under sections
2511(2)(a)(ii)(B) or 2709(b) of Title 18, or directives to electronic
communication service providers under particular sections of FISA or the
Protect America Act.

The Attorney General may only make a certification under the fourth
statutory requirement, section 802(a)(4), if the civil action is a covered
civil action (as defined in section 801(5)). To satisfy the requirements of
section 802(a)(4), the Attorney General must certify first that the assistance
alleged to have been provided by the electronic communication service provider
was in connection with an intelligence activity involving communications that
was (1) authorized by the President between September 11, 2001 and January 17,
2007 and (2) designed to detect or prevent a terrorist attack or preparations
for one against the United States. In addition, the Attorney General must also
certify that the assistance was the subject of a written request or directive,

or a series of written requests or directives, from the Attorney General or
the head (or deputy to the head) of an element of the intelligence community
to the electronic communication service provider indicating that the activity
was (1) authorized by the President and (2) determined to be lawful. The
report of the Select Committee on Intelligence contained a description of the
relevant correspondence provided to electronic communication service providers
(S. Rep. No. 110-209, at 9).

The district court must give effect to the Attorney General's certification
unless the court finds it is not supported by substantial evidence provided to
the court pursuant to this section. In its review, the court may examine any
relevant court order, certification, written request or directive submitted by
the Attorney General pursuant to subsection (b)(2) or by the parties pursuant
to subsection (d). Section 802 is silent on the nature of any additional
materials that the Attorney General may submit beyond those listed in
subsection (b)(2) if the Attorney General determines they are necessary to
provide substantial evidence to support the certification, such as if the
Attorney General certifies that a person did not provide the alleged
assistance.

If the Attorney General files a declaration that disclosure of a
certification or supplemental materials would harm national security, the
court shall review the certification and supplemental materials in camera and
ex parte, which means with only the Government present. A public order
following that review shall be limited to a statement as to whether the case
is dismissed and a description of the legal standards that govern the order,
without disclosing the basis for the certification of the Attorney General.
The purpose of this requirement is to protect the classified national security
information involved in the identification of providers who assist the
Government. A public order shall not disclose whether the certification was
based on an order, certification, or directive, or on the ground that the
electronic communication service provider furnished no assistance. Because the
district court must find that the certification-including a certification that
states that a party did not provide the alleged assistance-is supported by
substantial evidence in order to dismiss a case, an order failing to dismiss a
case is only a conclusion that the substantial evidence test has not been met.
It does not indicate whether a particular provider assisted the government.

Subsection (d) makes clear that any plaintiff or defendant in a civil
action may submit any relevant court order, certification, written request, or
directive to the district court for review and be permitted to participate in
the briefing or argument of any legal *S6135 issue in a judicial proceeding
conducted pursuant to this section, to the extent that such participation does
not require the disclosure of classified information to such party. The
authorities of the Attorney General under section 802 are to be performed only
by the Attorney General, the Acting Attorney General, or the Deputy Attorney
General.

In adopting the portions of section 802 that allow for liability protection
for those electronic communication service providers who may have participated
in the program of intelligence activity involving communications authorized by
the President between September 11, 2001, and January 17, 2007, the Congress
makes no statement on the legality of the program. This is in accord with the
statement in the report of the Senate Intelligence Committee that "Section 202
<as the immunity provision was then numbered> makes no assessment about the
legality of the President's program." S. Rep. No. 110-209, at 9.

Section 803. Preemption of State Investigations

Section 803 addresses actions taken by a number of state regulatory
commissions to force disclosure of information concerning cooperation by state
regulated electronic communication service providers with U.S. intelligence
agencies. Section 803 preempts these state actions and authorizes the United
States to bring suit to enforce the prohibition.

Section 804. Reporting

Section 804 provides for oversight of the implementation of Title VIII. On
a semiannual basis, the Attorney General is to provide to the appropriate
congressional committees a report on any certifications made under section
802, a description of the judicial review of the certifications made under
section 802, and any actions taken to enforce the provisions of section 803.

Section 202. Technical Amendments

Section 202 amends the table of contents of the first section of FISA.

TITLE III. REVIEW OF PREVIOUS ACTIONS
Title III directs the Inspectors General of the Department of Justice, the
Office of the Director of National Intelligence, the Department of Defense,
the National Security Agency, and any other element of the intelligence
community that participated in the President's surveillance program, defined
in the title to mean the intelligence activity involving communications that
was authorized by the President during the period beginning on September 11,
2001, and ending on January 17, 2007, to complete a comprehensive review of
the program with respect to the oversight authority and responsibility of each
such inspector general.

The review is to include: all of the facts necessary to describe the
establishment, implementation, product, and use of the product of the program;
access to legal reviews of the program and information about the program;
communications with, and participation of, individuals and entities in the
private sector related to the program; interaction with the FISA Court and
transition to court orders related to the program; and any other matters
identified by any such inspector general that would enable that inspector
general complete a review of the program with respect to the inspector
general's department or element.

The inspectors general are directed to work in conjunction, to the extent
practicable, with other inspectors general required to conduct a review, and
not unnecessarily duplicate or delay any reviews or audits that have already
been completed or are being undertaken with respect to the program. In
addition, the Counsel of the Office of Professional Responsibility of the
Department of Justice is directed to provide the report of any investigation
of that office relating to the program, including any investigation of the

process through which the legal reviews of the program were conducted and the
substance of such reviews, to the Inspector General of the Department of
Justice, who shall integrate the factual findings and conclusions of such
investigation into its review.

The inspectors general shall designate one of the Senate confirmed
inspectors general required to conduct a review to coordinate the conduct of
the reviews and the preparation of the reports. The inspectors general are to
submit an interim report within sixty days to the appropriate congressional
committees on their planned scope of review. The final report is to be
completed no later than one year after enactment and shall be submitted in
unclassified form, but may include a classified annex.

The Congress is aware that the Inspector General of the Department of
Justice has undertaken a review of the program. This review should serve as a
significant part of the basis for meeting the requirements of this title. In
no event is this title intended to delay or duplicate the investigation
completed to date or the issuance of any report by the Inspector General of
the Department of Justice.

TITLE IV. OTHER PROVISIONS
Section 401. Severability

Section 401 provides that if any provision of this bill or its application
is held invalid, the validity of the remainder of the Act and its application
to other persons or circumstances is unaffected.

Section 402. Effective Date

Section 402 provides that except as provided in the transition procedures
(section 404 of the title), the amendments made by the bill shall take effect
immediately.

Section 403. Repeals

Section 403(a) provides for the repeal of those sections of FISA enacted as
amendments to FISA by the Protect America Act, except as provided otherwise in
the transition procedures of section 404, and makes technical and conforming
amendments.

Section 403(b) provides for the sunset of the FISA Amendments Act on
December 31, 2012, except as provided in section 404 of the bill. This date
ensures that the amendments by the Act will be reviewed during the next
presidential administration. The subsection also makes technical and
conforming amendments.

Section 404. Transition Procedures

Section 404 establishes transition procedures for the Protect America Act
and the Foreign Intelligence Surveillance Act Amendments of 2008.

Subsection (a)(1) continues in effect orders, authorizations, and
directives issued under FISA, as amended by section 2 of the Protect America
Act, until the expiration of such order, authorization or directive.

Subsection (a)(2) sets forth the provisions of FISA and the Protect America
Act that continue to apply to any acquisition conducted under such Protect
America Act order, authorization or directive. In addition, subsection (a)
clarifies the following provisions of the Protect America Act: the protection
from liability provision of subsection (l) of Section 105B of FISA as added by
section 2 of the Protect America Act; jurisdiction of the FISA Court with
respect to a directive issued pursuant to the Protect America Act, and the
Protect America Act reporting requirements of the Attorney General and the
DNI. Subsection (a) is made effective as of the date of enactment of the
Protect America Act (August 5, 2007). The purpose of these clarifications and
the effective date for them is to ensure that there are no gaps in the legal
protections contained in that act, including for authorized collection
following the sunset of the Protect America Act, notwithstanding that its
sunset provision was only extended once until February 16, 2008. Additionally,
subsection (a)(3) fills a void in the Protect America Act and applies the use
provisions of section 106 of FISA to collection under the Protect America Act,
in the same manner that section 706 does for collection under Title VII.

In addition, subsection (a)(7) makes clear that if the Attorney General and
the DNI seek to replace an authorization made pursuant to the Protect America
Act with an authorization made under section 702, as added by this bill, they
are, to the extent practicable, to submit a certification to the FISA Court at
least 30 days in advance of the expiration of such authorization. The
authorizations, and any directives issued pursuant to the authorization, are
to remain in effect until the FISA Court issues an order with respect to that
certification.

Subsection (b) provides similar treatment for any order of the FISA Court
issued under Title VII of this bill in effect on December 31, 2012.

Subsection (c) provides transition procedures for the authorizations in
effect under section 2.5 of Executive Order 12333. Those authorizations shall
continue in effect until the earlier of the date that authorization expires or
the date that is 90 days after the enactment of this Act. This transition
provision is particularly applicable to the transition to FISA Court orders
that will occur as a result of sections 703 and 704 of FISA, as added by this
bill.