113th CONGRESS
1st Session
S. 1452
To enhance transparency for certain surveillance programs authorized by
the Foreign Intelligence Surveillance Act of 1978 and for other
purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
August 1, 2013
Mr. Franken (for himself, Mr. Leahy, Mr. Udall of New Mexico, Mr.
Blumenthal, Mr. Merkley, Mr. Udall of Colorado, Mr. Wyden, Mr. Tester,
Mr. Markey, Mr. Durbin, and Ms. Warren) introduced the following bill;
which was read twice and referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To enhance transparency for certain surveillance programs authorized by
the Foreign Intelligence Surveillance Act of 1978 and for other
purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Surveillance Transparency Act of
2013''.
SEC. 2. ENHANCED PUBLIC REPORTING FOR ORDERS UNDER THE FOREIGN
INTELLIGENCE SURVEILLANCE ACT OF 1978.
(a) Enhanced Reporting for Electronic Surveillance Orders.--Section
107 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1807) is amended--
(1) by redesignating subsections (a) and (b) as paragraphs
(1) and (2), respectively;
(2) in paragraph (1), as redesignated by paragraph (1) of
this subsection, by striking ``and'' at the end;
(3) in paragraph (2), as redesignated by paragraph (1) of
this subsection, by striking the period at the end and
inserting a semicolon; and
(4) by adding at the end the following:
``(3) the total number of individuals who were subject to
electronic surveillance conducted under an order entered under
this title, provided that if this number is fewer than 500, it
shall exclusively be expressed as a numerical range of `fewer
than 500' and shall not be expressed as an individual number;
and
``(4) the total number of citizens of the United States and
aliens lawfully admitted for permanent residence (as defined in
section 101(a)(20) of the Immigration and Nationality Act (8
U.S.C. 1101(a)(20)) who were subject to electronic surveillance
conducted under an order entered under this title, provided
that if this number is fewer than 500, it shall exclusively be
expressed as a numerical range of `fewer than 500' and shall
not be expressed as an individual number.''.
(b) Enhanced Reporting for Pen Registers and Trap and Trace
Devices.--Section 406 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1846) is amended by adding at the end the following:
``(c)(1) Except as provided in paragraph (2), in April of each
year, the Attorney General shall submit to Congress a report setting
forth with respect to the preceding year--
``(A) the total number of applications made for orders
approving the use of a pen register and trap and trace devices
under this title;
``(B) the total number of such orders either granted,
modified, or denied;
``(C) a good faith estimate of the total number of
individual persons whose electronic or wire communications
information was obtained through the use of pen register or
trap and trace devices authorized under an order entered under
this title;
``(D) good faith estimates of the total numbers of United
States persons--
``(i) whose electronic or wire communications
information was obtained through the use of pen
register or trap and trace devices authorized under an
order entered under this title;
``(ii) whose electronic communications information
was obtained through the use of pen register or trap
and trace devices authorized under an order entered
under this title, and the number of such persons whose
information was subsequently reviewed or accessed by a
Federal officer, employee, or agent; and
``(iii) whose wire communications information was
obtained through the use of pen register or trap and
trace devices authorized under an order entered under
this title, and the number of such persons whose
information was subsequently reviewed or accessed by a
Federal officer, employee, or agent; and
``(E) the total number of computer-assisted search queries
initiated by a Federal officer, employee, or agent in any
database of electronic or wire communications information
obtained through the use of a pen register or trap and trace
device authorized under an order entered under this title, and
the number of such queries whose search terms included
information from the electronic or wire communications
information of a United States person.
``(2) If an estimate specified in subparagraphs (C) or (D) of
paragraph (1) is fewer than 500, it shall exclusively be expressed as a
numerical range of `fewer than 500' and shall not be expressed as an
individual number.
``(3) Each report under this section shall be submitted in
unclassified form and shall be made available to the public 7 days
after the date such report is submitted to Congress.
``(4) Nothing in this subsection shall be construed to authorize or
in any other way affect the lawfulness or unlawfulness of installing or
using a pen register or trap and trace device.
``(5) In this subsection:
``(A) The terms `electronic communication' and `wire
communication' have the meanings given those terms in section
2510 of title 18, United States Code.
``(B) The term `individual person' means any individual and
excludes any group, entity, association, corporation, or
governmental entity.
``(C) The term `United States person' means a citizen of
the United States or an alien lawfully admitted for permanent
residence (as defined in section 101(a)(20) of the Immigration
and Nationality Act (8 U.S.C. 1101(a)(20)).''.
(c) Enhanced Reporting for Business Records Requests.--Section 502
of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1862)
is amended--
(1) in subsection (b)(3), by adding at the end the
following:
``(F) Records concerning electronic communications.
``(G) Records concerning wire communications.
``(H) Information described in subparagraph (A), (B), (D),
(E), or (F) of section 2703(c)(2) of title 18, United States
Code.''; and
(2) by amending subsection (c) to read as follows:
``(c)(1) Except as provided in paragraph (2), in April of each
year, the Attorney General shall submit to Congress a report setting
forth with respect to the preceding year--
``(A) the total number of applications made for orders
approving requests for the production of tangible things under
section 501;
``(B) the total number of such orders either granted,
modified, or denied;
``(C) a good faith estimate of the total number of
individual persons whose tangible things were produced under an
order entered under section 501;
``(D) good faith estimates of the total numbers of United
States persons--
``(i) whose tangible things were produced under an
order entered under section 501;
``(ii) who were a party to an electronic
communication of which a record was produced under an
order entered under section 501, and the number of such
persons whose records were subsequently reviewed or
accessed by a Federal officer, employee, or agent;
``(iii) who were a party to a wire communication of
which a record was produced under an order entered
under section 501, and the number of such persons whose
records were subsequently reviewed or accessed by a
Federal officer, employee, or agent; and
``(iv) who were subscribers or customers of an
electronic communication service or remote computing
service and whose records, as described in subparagraph
(A), (B), (D), (E), or (F) of section 2703(c)(2) of
title 18, United States Code, were produced under an
order entered under section 501, and the number of such
persons whose records were subsequently reviewed by a
Federal officer, employee, or agent;
``(E) the total number of computer-assisted search queries
initiated by a Federal officer, employee or agent in any
database of tangible things produced under an order entered
under section 501, and the number of such queries whose search
terms included information from the electronic or wire
communications contents or records of a United States person;
and
``(F) a certification confirming that in the course of the
preceding year no orders entered under section 501 were used to
obtain the contents of an electronic or wire communication.
``(2) If an estimate described in subparagraph (C) or (D) of
paragraph (1) is fewer than 500, it shall exclusively be expressed as a
numerical range of `fewer than 500' and shall not be expressed as an
individual number.
``(3) Each report under this subsection shall be submitted in
unclassified form and shall be made available to the public 7 days
after the date such report is submitted to Congress.
``(4) Nothing in this subsection shall be construed to authorize or
in any other way affect the lawfulness or unlawfulness of using an
order for the production of tangible things under section 501 to obtain
any of the items described in subparagraphs (A) through (H) of
subsection (b)(3).
``(5) In this subsection:
``(A) The terms `contents', `electronic communication',
`electronic communication service', and `wire communication'
shall have the meanings given those terms in section 2510 of
title 18, United States Code.
``(B) The term `individual person' means any individual and
excludes any group, entity, association, corporation, or
governmental entity.
``(C) The term `remote computing service' has the meaning
given that term in section 2711 of title 18, United States
Code.
``(D) The term `United States person' means a citizen of
the United States or an alien lawfully admitted for permanent
residence (as defined in section 101(a)(20) of the Immigration
and Nationality Act (8 U.S.C. 1101(a)(20)).''.
(d) Enhanced Reporting for Additional Procedures Regarding Certain
Persons Outside the United States.--Section 707 of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1881f) is amended by
adding at the end the following:
``(c) Annual Report.--
``(1) Requirement for report.--In April of each year, the
Attorney General shall submit to Congress a report setting
forth with respect to the preceding year--
``(A) the total number of--
``(i) directives issued under section 702;
``(ii) orders granted under section 703;
and
``(iii) orders granted under section 704;
``(B) good faith estimates of the total numbers of
individual persons whose electronic or wire
communications or communications records were collected
pursuant to--
``(i) a directive issued under section 702;
``(ii) an order granted under section 703;
and
``(iii) an order granted under section 704;
and
``(C) good faith estimates of the total numbers of
United States persons--
``(i) whose electronic or wire
communications contents or records were
collected pursuant to--
``(I) a directive issued under
section 702;
``(II) an order granted under
section 703; and
``(III) an order granted under
section 704;
``(ii) who were a party to an electronic
communication whose contents were collected
pursuant to a directive issued under section
702, and the number of such persons whose
communication contents were subsequently
reviewed or accessed by a Federal officer,
employee, or agent;
``(iii) who were a party to an electronic
communication whose records (other than
content) were collected pursuant to a directive
issued under section 702, and the number of
such persons whose communication records were
subsequently reviewed or accessed by a Federal
officer, employee, or agent;
``(iv) who were a party to a wire
communication whose contents were collected
pursuant to a directive issued under section
702, and the number of such persons whose
communication contents were subsequently
reviewed or accessed by a Federal officer,
employee, or agent;
``(v) who were a party to an electronic
communication whose records (other than
content) were collected pursuant to a directive
issued under section 702, and the number of
such persons whose communication records were
subsequently reviewed or accessed by a Federal
officer, employee, or agent; and
``(vi) who were subscribers or customers of
an electronic communication service or remote
computing service whose records, as described
in subparagraphs (A), (B), (D), (E), and (F) of
section 2703(c)(2) of title 18, United States
Code, were produced pursuant to a directive
issued under section 702, and the number of
such persons whose records were subsequently
reviewed or accessed by a Federal officer,
employee, or agent.
``(2) Statement of numerical range.--If an estimate
specified in subparagraphs (B) or (C) of paragraph (1) is fewer
than 500, it shall exclusively be expressed as a numerical
range of `fewer than 500' and shall not be expressed as an
individual number.
``(3) Public availability.--Each report under this
subsection shall be submitted in unclassified form and shall be
made available to the public 7 days after the date such report
is submitted to Congress.
``(4) Definitions.--In this subsection:
``(A) In general.--The terms `contents',
`electronic communication', `electronic communication
service', and `wire communication' have the same
meanings given those terms in section 2510 of title 18,
United States Code.
``(B) Individual person.--The term `individual
person' means any individual and excludes any group,
entity, association, corporation, or governmental
entity.
``(C) Remote computing service.--The term `remote
computing service' shall have the same meaning given
that term in section 2711 of title 18, United States
Code.
``(D) United states person.--The term `United
States person' means a citizen of the United States or
an alien lawfully admitted for permanent residence (as
defined in section 101(a)(20) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(20)).
``(5) Construction.--Nothing in this section shall be
construed to authorize or in any other way affect the
lawfulness or unlawfulness of using an order or directive under
section 702, 703, or 704 to collect any of the information
described in subparagraph (B) or (C) of paragraph (1).''.
SEC. 3. PUBLIC DISCLOSURES OF AGGREGATE INFORMATION RELATED TO ORDERS
UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.
(a) Disclosures.--The Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et seq.) is amended by adding at the end the following:
``TITLE IX--PUBLIC DISCLOSURES OF AGGREGATE INFORMATION
``SEC. 901. PUBLIC DISCLOSURES OF AGGREGATE INFORMATION.
``(a) In General.--Except as provided under subsection (c), a
person that has received an order under section 105, 402, or 501, or an
order or a directive under section 702, 703, or 704 may, every six
months with respect to the preceding six-month period, disclose to the
public information with respect to each statutory authority as follows:
``(1) The total number of orders or directives received
under the authority.
``(2) The percentage or total number of such orders or
directives complied with, in whole or in part.
``(3) The total number of individual persons, users, or
accounts whose information of any kind was produced to the
Government, or was obtained or collected by the Government,
under an order or directive received under the authority.
``(b) Nature of Production.--Except as provided under subsection
(c), a person that has received an order under section 402 or 501, or
an order or a directive under section 702 may, every six months with
respect to the preceding six-month period, disclose to the public the
total number of individual persons, users, or accounts for whom the
following information was produced to the Government, or was obtained
or collected by the Government, with respect to each such authority, if
applicable:
``(1) The contents of electronic communications.
``(2) The contents of wire communications.
``(3) Records concerning electronic communications.
``(4) Records concerning wire communications.
``(5) Information described in subparagraph (A), (B), (D),
(E), or (F) of section 2703(c)(2) of title 18.
``(c) Statement of Numerical Range.--If the total number of
individual persons, users, or accounts specified in paragraph (3) of
subsection (a) or in paragraphs (1), (2), (3), (4), or (5) of
subsection (b) is fewer than 500, it shall exclusively be expressed as
a numerical range of `fewer than 500' and shall not be expressed as an
individual number.
``(d) Permitted Disclosure.--No cause of action shall lie in any
court against any person for making a disclosure in accordance with
this section.
``(e) Construction.--Nothing in this section shall be construed--
``(1) to authorize or in any other way affect the
lawfulness or unlawfulness of using an order or directive
described in subsection (a) to obtain, collect, or secure the
production of information described in paragraphs (1), (2),
(3), (4), or (5) of subsection (b); or
``(2) to prohibit, implicitly preclude, or in any other way
affect the lawfulness or unlawfulness of a disclosure not
authorized by this section.
``(f) Definitions.--In this section:
``(1) In general.--The terms `contents', `electronic
communication', and `wire communication' have the meanings
given those terms in section 2510 of title 18, United States
Code.
``(2) Individual person.--The term `individual person'
means any individual and excludes any group, entity,
association, corporation, or governmental entity.
``(3) Person.--The term `person' has the meaning given that
term in section 101.''.
(b) Conforming Amendments.--The Foreign Intelligence Surveillance
Act of 1978 is amended--
(1) in section 402(d)(2)(B)(ii)(I) (50 U.S.C.
1842(d)(2)(B)(ii)(I)), by inserting ``except as permitted by
section 901,'' before ``shall not disclose''; and
(2) in section 501(d) (50 U.S.C. 1861(d))--
(A) in paragraph (1)--
(i) in subparagraph (B), by striking ``or''
at the end;
(ii) in subparagraph (C), by striking the
period at the end and inserting a semicolon and
``or''; and
(iii) by adding at the end the following:
``(D) the public as permitted by section 901.'';
and
(B) in paragraph (2)(A) by inserting ``subparagraph
(A), (B), or (C) of'' after ``pursuant to''.
(c) Table of Contents Amendment.--The table of contents in the
first section of th Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.) is amended by adding at the end the following:
``TITLE IX--PUBLIC DISCLOSURES OF AGGREGATE INFORMATION
``Sec. 901. Public disclosures of aggregate information.''.
