Collapse to view only § 1885b. Preemption
- § 1885. Definitions
- § 1885a. Procedures for implementing statutory defenses
- § 1885b. Preemption
- § 1885c. Reporting
§ 1885. DefinitionsIn this subchapter:
(1) Assistance
(2) Civil action
(3) Congressional intelligence committeesThe 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
(5) Covered civil actionThe 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 providerThe term “electronic communication service provider” means—
(A) a telecommunications carrier, as that term is defined in section 153 of title 47;
(B) a provider of electronic communication service, as that term is defined in section 2510 of title 18;
(C) a provider of a remote computing service, as that term is defined in section 2711 of title 18;
(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) any other service provider who has access to equipment that is being or may be used to transmit or store wire or electronic communications, but not including any entity that serves primarily as—
(i) a public accommodation facility, as that term is defined in section 1861(4) of this title;
(ii) a dwelling, as that term is defined in section 3602 of title 42;
(iii) a community facility, as that term is defined in section 1592n of title 42; or
(iv) a food service establishment, as that term is defined in section 1638 of title 7;
(F) a parent, subsidiary, affiliate, successor, or assignee of an entity described in subparagraph (A), (B), (C), or (D);
(G) an officer, employee, custodian, or agent of an entity described in subparagraph (A), (B), (C), (D), (E), or (F).
(7) Intelligence community
(8) PersonThe 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 1803(a) of this title directing such assistance;
(ii) a certification in writing under section 2511(2)(a)(ii)(B) or 2709(b) of title 18; or
(iii) a directive under section 1802(a)(4), 1805b(e), as added by section 2 of the Protect America Act of 2007 (Public Law 110–55), or 1881a(i) of this title.
(9) State
(Pub. L. 95–511, title VIII, § 801, as added Pub. L. 110–261, title II, § 201, July 10, 2008, 122 Stat. 2467; amended Pub. L. 115–118, title I, § 101(b)(2)(A), title II, § 205(a)(7), Jan. 19, 2018, 132 Stat. 8, 21; Pub. L. 118–49, § 25(b), Apr. 20, 2024, 138 Stat. 893.)
§ 1885a. Procedures for implementing statutory defenses
(a) Requirement for certificationNotwithstanding 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 1803(a) of this title 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;
(3) any assistance by that person was provided pursuant to a directive under section 1802(a)(4), 1805b(e), as added by section 2 of the Protect America Act of 2007 (Public Law 110–55), or 1881a(i) of this title 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
(2) Supplemental materials
(c) Limitations on disclosureIf the Attorney General files a declaration under section 1746 of title 28 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
(e) Nondelegation
(f) Appeal
(g) Removal
(h) Relationship to other laws
(i) Applicability
(Pub. L. 95–511, title VIII, § 802, as added Pub. L. 110–261, title II, § 201, July 10, 2008, 122 Stat. 2468; amended Pub. L. 115–118, title I, § 101(b)(2)(A), Jan. 19, 2018, 132 Stat. 8.)
§ 1885b. 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
(c) Jurisdiction
(d) Application
(Pub. L. 95–511, title VIII, § 803, as added Pub. L. 110–261, title II, § 201, July 10, 2008, 122 Stat. 2470.)
§ 1885c. Reporting
(a) Semiannual report
(b) Content
Each report made under subsection (a) shall include—
(1) any certifications made under section 1885a of this title;
(2) a description of the judicial review of the certifications made under section 1885a of this title; and
(3) any actions taken to enforce the provisions of section 1885b of this title.
(Pub. L. 95–511, title VIII, § 804, as added Pub. L. 110–261, title II, § 201, July 10, 2008, 122 Stat. 2470.)